James E. King v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES E. KING,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2022-2152
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-21-0271-I-1.
______________________
Decided: April 26, 2024
______________________
CHRISTOPHER D. VAUGHN, The Vaughn Law Firm, LLC,
Decatur, GA, for petitioner.
ELIZABETH M ARIE D URFEE P ULLIN, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represented
by BRIAN M. B OYNTON, T ARA K. H OGAN , P ATRICIA M.
MCCARTHY .
______________________
Before T ARANTO, CHEN, and HUGHES , Circuit Judges.
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KING v. ARMY 2
P ER CURIAM.
Petitioner James E. King appeals a final decision of the
Merit Systems Protection Board, in which the Board
sustained the Department of the Army’s decision to remove
Mr. King from his position as an army civilian police
officer. Because the Board’s decision was supported by
substantial evidence and is otherwise in accordance with
the law, we affirm.
I
A
Mr. King had been employed by the Department of the
Army since 2009, as a Department of the Army Civilian
Police Officer (DACP) at the Directorate of Emergency Ser-
vices/Provost Marshal’s Office located on Fort Eisen-
hower,1 Georgia. In 2014, Mr. King was promoted to a
higher graded position as a GS-0083-08 DACP officer, com-
monly referred to as a “Game Warden.” Mr. King remained
in this position until he was removed in February 2021, af-
ter the agency sustained three charges of misconduct
against him.
The authority and jurisdiction of a DACP working at
Fort Eisenhower is specifically limited to “performing law
enforcement or security functions on Fort [Eisenhower].”
J.A. 275–77 (Aug. 14, 2020 Memorandum for Record de-
scribing DACP authority and jurisdiction, signed and
acknowledged by Mr. King); Army Regulation (AR) 190-56,
¶ 5-2.a (Mar. 15, 2013). A DACP does not have authority to
1 During Mr. King’s employment as a DACP, and at
the time of the Board’s decision, his Army post was known
as Fort Gordon, Georgia. However, as of October 2023, the
post has been officially renamed Fort Eisenhower, Georgia.
As such, this opinion only refers to the Army post under its
current official name, Fort Eisenhower.
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KING v. ARMY 3
exercise law enforcement or security tasks outside of Fort
Eisenhower. J.A. 275; AR 190-56, ¶ 5-2.d. Accordingly,
DACPs are only permitted to wear their official uniform
and badge while on duty at Fort Eisenhower or while trav-
eling to and from work. J.A. 276; AR 190-56, ¶ 5-2.f. With
limited exceptions, a DACP is not authorized to patronize
off-post establishments while wearing their official uni-
form or badge. J.A. 276. Similarly, DACP are prohibited
from carrying their service weapons while off duty. J.A.
276; AR 190-56, ¶ 5-2.f.
When performing law enforcement activities, a DACP
is subject to the requirements of the Individual Reliability
Program (IRP), which ensures that individuals performing
such duties maintain the high standard of “character,
trustworthiness, and fitness” expected of law enforcement
and security professionals. J.A. 277; AR 190-56, ¶ 3-3.b. A
DACP is prohibited from carrying a service weapon or per-
forming any law enforcement or security duties if they are
disqualified as unreliable under the IRP. J.A. 277; AR 190-
56, ¶ 3-8.b. Additionally, because continued qualification
for the IRP is a condition of employment, AR 190-56, ¶ 3-
4.b, disqualification can also serve as a basis for removal,
J.A. 277; AR 190-56, ¶ 2-2.a.
Should the agency subsequently propose removal, the
DACP, as an “employee” under 5 U.S.C. § 7511, is entitled
to receive written notice and an opportunity to respond to
the proposed removal. See 5 U.S.C. § 7513 (describing pro-
cedures for removal of civil service employees). The same
procedural process further establishes the right to appeal
a final removal decision to the Board. 5 U.S.C. § 7513(d).
B
On or around October 16, 2020, the agency began an
investigation into Mr. King after receiving allegations
against him for misuse of government property and false
reporting. Specifically, another officer alleged that
Mr. King’s game warden truck had been spotted at an off-
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KING v. ARMY 4
post restaurant during duty hours, when he was expected
to be on post. Evidence collected during the investigation
indicated that Mr. King had used his game warden vehicle
to dine at the alleged off-post restaurant during duty
hours, without authorization, while wearing his DACP uni-
form and badge, while in possession of his service weapon.
The investigating officer also discovered that the official
duty log Mr. King had filled out for the day in question re-
flected that he had been performing security checks on post
at the time of the alleged off-post incident. After collecting
the necessary statements from the witnessing and report-
ing officers and the waitstaff of the off-post restaurant, and
conducting additional interviews with the relevant wit-
nesses, the investigating officer prepared an Investigators
Statement, giving “a final report” of the evidence that had
been collected during the investigation. J.A. 267–68. The
investigation was completed on November 9, 2020.
Prior to the October 2020 investigation, the agency
identified no previous formal disciplinary actions against
Mr. King during his time as a DACP. However, Mr. King
had received written counseling from his immediate super-
visor concerning multiple instances of conduct-related inci-
dents occurring between May and September of 2020,
including “irregular attendance,” J.A. 10, and “key control
concerns,” J.A. 85 (supervisory training officer stressing
“the importance of key control” after receiving six keys—
that had been checked out by Mr. King—one of which had
access to artillery, that had been left hanging in the lock of
a desk drawer). And on October 19, 2020, Mr. King received
a Letter of Counseling from the Deputy Director of his de-
partment addressing “concerns with the accuracy of his
time and attendance reporting based upon a larger agency
investigation concerning the conduct of multiple officers.”
J.A. 10. The letter also stated that “[a]ny future discrep-
ancy in [Mr. King’s] time and attendance records or en-
tries . . . [would] subject [him] to disciplinary action.” J.A.
271.
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KING v. ARMY 5
On January 6, 2021, Mr. King was permanently decer-
tified from the IRP based on the agency’s determination
that he did “not possess the ‘character, trustworthiness,
and fitness [that] are consistent with the high standards
expected of law enforcement and security professionals.’”
J.A. 71 (Decertification Memorandum) (quoting AR 190-56,
¶ 3-3.b) (alteration in original). The determination was
based on documentation including, but not limited to,
Mr. King’s employment record, previous written counsel-
ing for conduct related issues, and “information developed
as part of an investigation into [his] misuse of government
property and failure to properly account for [his] time in
official duty records on or about 15 October 2020.” Id.
That same day, based on the evidence collected during
the investigation, the agency issued Mr. King a Notifica-
tion of Proposed Removal based on three charges: (1) Con-
duct Unbecoming a Law Enforcement Officer (Misuse of
Government Property); (2) Lack of Candor; and (3) Failure
to Maintain a Condition of Employment (Decertification
under the IRP). J.A. 52–62. The Notice laid out the specific
details relied on to establish the three charges, as well as
the “aggravating and mitigating Douglas Factors” that
were considered in deciding Mr. King’s ultimate penalty.
J.A. 53–56; see Douglas v. Veterans Admin., 5 M.S.P.R. 280,
305–06 (1981). Enclosed along with the Notice were the rel-
evant witness statements, Mr. King’s official duty log en-
tries, and the IRP Decertification Memo. J.A. 62. The
Notice also apprised Mr. King of his “right to respond” and
“furnish affidavits, and other documentary evidence in
support of [his] response,” and clarified that no removal de-
cision had been made, or would be made, until after the
time Mr. King was given to respond. J.A. 56–57. At the con-
clusion of the Notice, Mr. King was informed of his right to
appeal any final appealable decisions to the MSPB and pro-
vided with the necessary details to obtain an appeal. J.A.
57–61 (listing the four different appeal options available,
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KING v. ARMY 6
but noting that only one option can be selected, and the se-
lection would be binding).
Mr. King, through a union representative, responded
to the Notice in writing on January 11, 2021. In his re-
sponse, Mr. King contested the allegations against him, the
adequacy of the agency’s investigation, and the appropri-
ateness of his proposed removal. J.A. 72–75. On February
10, 2021, after considering his response, the agency sus-
tained the three charges against Mr. King and removed
him from his position, effective February 12, 2021 (the Re-
moval Decision). J.A. 63–70. Similar to the earlier Notice,
the Removal Decision again provided Mr. King with the
specifications for the three charges against him, the rele-
vant Douglas factors supporting his removal, and his ap-
peal options. Id.
C
On March 9, 2021, Mr. King appealed the agency’s Re-
moval Decision to the MSPB and a hearing was held on
June 22, 2021. On June 28, 2021, the administrative judge
assigned to the appeal issued an initial decision, sustaining
the agency’s charges, denying Mr. King’s affirmative de-
fenses, and sustaining the agency’s decision to remove
Mr. King from his position. The administrative judge de-
termined that the agency had proven all three of its
charges by a preponderance of the evidence, and that the
agency had proven by a preponderance of the evidence that
Mr. King’s “penalty of removal promotes the efficiency of
service.” J.A. 18–23. The administrative judge further de-
termined that Mr. King had failed to prove all three of his
affirmative defenses. J.A. 24–29. Finally, the administra-
tive judge reviewed the agency’s consideration and appli-
cation of the Douglas factors, and concluded that
Mr. King’s removal did not exceed the bounds of reasona-
bleness. J.A. 29–31.
On September 1, 2021, Mr. King petitioned the Board
for review of the administrative judge’s initial decision.
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KING v. ARMY 7
Mr. King argued that the administrative judge erred in
sustaining the three misconduct charges, erred in finding
that he did not establish his affirmative defenses (harmful
error, equal employment opportunity retaliation, and disa-
bility discrimination/disparate treatment), and erred in
finding that the penalty of removal was within the bounds
of reasonableness. Upon reviewing the petition filings, the
Board concluded that Mr. King had not established any ba-
sis for which it should grant the petition for review and de-
nied the petition. J.A. 2; see also 5 C.F.R. § 1201.115
(“Criteria for granting petition or cross petition for re-
view.”). On June 28, 2022, the Board issued a final order
affirming the administrative judge’s initial decision, but
expressly modifying it “to address [Mr. King’s] disparate
penalty claim.” J.A. 2 (hereinafter, the Board’s decision).
Mr. King timely filed this petition for review on August
25, 2022, within 60 days of the Board’s final decision. See 5
U.S.C. § 7703(b)(1)(A). This court has jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).2
II
This court must affirm a Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” See
5 U.S.C. § 7703(c). We review the Board’s legal determina-
tions, such as statutory interpretations, de novo and its
2 Although Mr. King asserted an affirmative defense
based on equal employment retaliation—which would oth-
erwise preclude us from having jurisdiction—he has aban-
doned those claims on appeal, thus providing this court
with jurisdiction. ECF No. 4, at 1–3; Harris v. Sec. & Exch.
Comm’n, 972 F.3d 1307, 1318 (Fed. Cir. 2020).
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KING v. ARMY 8
findings of fact for substantial evidence. Archuleta v. Hop-
per, 786 F.3d 1340, 1346 (Fed. Cir. 2015).
A decision is supported by substantial evidence when
there is relevant evidence that “a reasonable mind might
accept as adequate to support a conclusion.” McLaughlin v.
Off. of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004)
(cleaned up). The burden of establishing reversible error in
the Board’s decision rests with the petitioner. Harris v.
Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir.
1998).
III
Mr. King presents three specific arguments on appeal.
We discuss each in turn. First, Mr. King argues that he was
unconstitutionally removed without due process, in viola-
tion of the Fifth Amendment Due Process Clause. Second,
Mr. King contends that the Board erred in finding that the
agency met its burden of proof to sustain the first two
charges against him. And third, Mr. King asserts that the
Board failed to properly assess the reasonableness of his
removal. For the reasons stated below, we reject all three
of Mr. King’s arguments.
A
As a federal employee as defined by 5 U.S.C.
§ 7511(a)(1), Mr. King has a constitutionally-protected
“property right in his continued employment” with the fed-
eral government. King v. Alston, 75 F.3d 657, 661 (Fed. Cir.
1996). Therefore, in an adverse action for removal,
Mr. King is entitled to the procedural due process protec-
tions provided in § 7513 of title 5. See also 5 U.S.C.
§ 7512(1) (listing “removal” as an action covered by the
statute). Such due process protections “include written no-
tice of the specific reasons for the proposed action, an op-
portunity to respond to the charges, and the requirement
that the agency’s action is taken to promote the efficiency
of the service.” Kaplan v. Conyers, 733 F.3d 1148, 1154
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KING v. ARMY 9
(Fed. Cir. 2013). Additionally, Mr. King has the right to ap-
peal his for-cause removal to the Board. Id. (citing
§ 7513(d)). And on appeal, the Board is statutorily man-
dated to determine whether the agency’s decision was sup-
ported by a preponderance of the evidence. Id. (citing 5
U.S.C. § 7701(c)(1)(B)).
Mr. King alleges that he was removed from his service,
and thus “deprived . . . of his interest in continued employ-
ment” without proper due process. Pet. Br. at 10. We find
no basis for this allegation. The record establishes that he
was given written notice of the charges against him and the
opportunity to respond. And the Board found his removal
supported the efficiency of the service. Nothing more is re-
quired.
Mr. King’s property interest was in his employment as
a DACP, not in his IRP certification. See Dep’t of Navy v.
Egan, 484 U.S. 518, 528 (1988) (holding that an employee
does not have a right to a security clearance). Additionally,
unlike removal, IRP decertification is not a reviewable “ad-
verse action” under § 7512 nor subject to the procedural re-
quirements of § 7513. As such, Board review of the agency’s
IRP decision was only available upon the agency’s adverse
removal action. In light of the aforementioned notice, op-
portunity, and review procedures afforded to Mr. King,
there is no question that he received proper due process
protections related to his removal. Therefore, we reject
Mr. King’s unsupported argument that he was deprived of
due process under the Fifth Amendment, and find that the
Board did not err in sustaining the agency’s third charge of
failure to maintain a condition of employment.
B
To sustain the first charge against Mr. King for con-
duct unbecoming a law enforcement officer (misuse of gov-
ernment property), the Board was required to conclude
that the agency had shown by a preponderance of the evi-
dence “(1) that [Mr. King] used (or removed or possessed)
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KING v. ARMY 10
government property; and (2) the use (or removal or pos-
session) was without permission.” J.A. 11 (citing Castro v.
Dep’t of Def., 39 M.S.P.R. 555 (1989)). To sustain the second
charge against Mr. King for lack of candor, the Board was
required to conclude that the agency had shown by a pre-
ponderance of the evidence “(1) that [Mr. King] made state-
ments which were less than candid, truthful, accurate, or
complete, involving deception; and (2) such statements
were knowingly made or withheld.” J.A. 11 (citing Rhee v.
Dep’t of Treasury, 117 M.S.P.R. 640 (2012)).
Again, the record establishes that the agency has met
its burden of proof under both charges. The Board affirmed
the first charge against Mr. King after finding that the
agency “presented clear and undisputed evidence that”
DACP officers “were not authorized to wear their official
uniforms, badges, or service weapons outside of Fort [Ei-
senhower] except in special circumstances not presented by
the facts of this appeal.” J.A. 18. The Board further found
that the agency had established that Mr. King had violated
this long-standing policy when he “used his government ve-
hicle to drive at least ten miles” to the off-post restaurant
while “in his full uniform.” J.A. 20.
The evidence used to support the Board’s finding as to
the agency’s first charge (misuse of government property),
was also used to support its finding as to the agency’s sec-
ond charge (lack of candor). Because Mr. King’s official
duty log for October 15, 2020, placed him on post at the
same time he was found to have been dining at the off-post
restaurant, the Board subsequently determined that the
agency had shown by a preponderance of the evidence that
there was a “significant and deceptive omission from
[Mr. King’s] official duty log.” J.A. 21.
Mr. King’s main challenge to the Board’s finding is that
the DACP uniform policy is “poorly drafted,” Pet. Br. at 19,
and that his stop at the off-post restaurant was “author-
ized” because, according to Mr. King, it occurred on October
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KING v. ARMY 11
9 while enroute to a training area,3 and not on October 15
as testified to by the waitress, Ms. Dulce Barajas, that
served Mr. King during her October 15 shift, and two other
witnessing officers, id. at 22. But we review the Board’s
findings for substantial evidence. The Board acknowledged
“[t]he diverging testimony about when exactly [Mr. King]
went to” the alleged restaurant, yet after “making credibil-
ity findings” as to each of the four witness’ testimonies, in-
cluding Mr. Kings’, the Board concluded that it was “likely”
and “far more credible” that the incident occurred on Octo-
ber 15. J.A. 16–18. Additionally, the Board explicitly noted
that Mr. King’s hearing testimony about when he stopped
at the restaurant “was flatly inconsistent with his own of-
ficial duty log entry for October 9.” J.A. 18.
Because a reasonable mind could accept the testimo-
nies of Ms. Barajas’ and the other witnessing officers as ad-
equate to support the conclusion that Mr. King used his
government vehicle to drive to the off-post restaurant while
on duty and wearing his official uniform and badge on Oc-
tober 15, we find that substantial evidence supports the
Board’s findings as to the first charge of misuse of govern-
ment property. Additionally, because Mr. King’s official
duty log for October 15, 2020, clearly omits any details
3 Despite claiming that he stopped at the alleged res-
taurant on October 9, 2020, Mr. King’s official duty log for
that day contains no record of any such stop. Mr. King al-
leges that, just after beginning his shift, and while on his
way to a training area, he stopped at the off-post restau-
rant to use the restroom and get some food after leaving
post. Pet. Br. at 3. Yet Mr. King’s official duty log shows
that he traveled from post to the training area at least 10
miles away, in 14 minutes. J.A. 83. Thus, even under
Mr. King’s own version of events, he nevertheless inten-
tionally omitted his stop at the off-post restaurant from his
official duty log.
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KING v. ARMY 12
indicating that he left the post while on duty that day, sub-
stantial evidence also supports the Board’s decision as to
the second charge of lack of candor.
C
The Board is required to review an agency decision to
determine whether “the agency-imposed penalty is clearly
excessive, disproportionate to the sustained charges, or ar-
bitrary, capricious, or unreasonable.” Douglas, 5 M.S.P.R.
at 284. But the Board’s function is not to displace the
agency’s management responsibility; rather, it is to assure
that the agency has properly exercised its managerial judg-
ment within “tolerable limits of reasonableness.” Id. at 302.
Thus, the Board must give due weight to the agency’s pri-
mary discretion in exercising the managerial function of
maintaining employee discipline and efficiency. Id. Fur-
ther, there are twelve articulated factors that agencies are
expected to consider when determining the appropriate-
ness of a particular penalty. Id. at 305–06 (listing non-ex-
haustive Douglas factors). “Only if the Board finds that the
agency failed to weigh the relevant factors, or that the
agency’s judgment clearly exceeded the limits of reasona-
bleness, is it appropriate for the Board then to specify how
the agency’s decision should be corrected to bring the pen-
alty within the parameters of reasonableness.” Id. at 306
(emphasis added).
Here, the Board reviewed the agency’s “detailed [re-
moval] decision letter explaining” the specific Douglas fac-
tors, both mitigating and aggravating, considered when
determining the appropriate penalty for Mr. King. J.A. 30;
see also J.A. 64–65. The Board also heard further testimony
from the deciding officer discussing the specific weight
given to each relevant factor. Then, after “carefully con-
sider[ing] the agency’s penalty analysis,” the Board deter-
mined that “[o]n the whole,” there was no basis to overturn
the agency’s decision to remove Mr. King from his position.
J.A. 31.
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KING v. ARMY 13
Mr. King alleges that the Board failed to properly as-
sess the reasonableness of his penalty because it “took the
[a]gency’s word at face-value” “[r]ather than properly re-
viewing the record.” Pet. Br. at 23. We disagree.
After sustaining all three of the agency’s charges, the
Board properly assessed the agency’s consideration of the
relevant Douglas factors and the weight given to each, and
determined that in light of the “seriousness of the offense
for a law enforcement officer,” and Mr. King’s lack of
“acknowledgement or remorse for such conduct,” the pen-
alty of removal was within the bounds of reasonableness.
J.A. 31. The Board also found that because the nature of
Mr. King’s conduct “involved leaving his assigned duty sta-
tion to purchase dinner off post and in his full uniform
while providing false information in his official duty log
about his whereabouts,” there was clear evidence that his
removal promotes the efficiency of service. J.A. 23. Because
there is substantial evidence that Mr. King used his gov-
ernment vehicle to leave his post, while on duty and with-
out permission, to make a prohibited stop at an
unauthorized off-post restaurant while wearing his official
uniform “including his badge and gun,” and was not truth-
ful about his whereabouts, J.A. 31, the Board did not err in
concluding that removing Mr. King from his position as a
law enforcement officer was not unreasonable.
IV
Because the Board’s decision was supported by sub-
stantial evidence, and his removal was not unreasonable,
we affirm.
AFFIRMED
COSTS
No costs.
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