Eugene Dokes, Jr. v. Department of Agriculture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EUGENE DOKES, JR.,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2024-1535
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-17-0085-I-3.
______________________
Decided: December 9, 2024
______________________
EUGENE DOKES, Murrieta, CA, pro se.
RAVI DHANANJAYEN SOOPRAMANIEN, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent.
Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE
HOSFORD, PATRICIA M. MCCARTHY.
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
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DOKES v. DEPARTMENT OF AGRICULTURE 2
PER CURIAM.
Eugene Dokes, Jr., petitions pro se for review of a
decision of the Merit Systems Protection Board (“Board”)
denying his petition for review and affirming an initial
decision of an administrative judge of the Board that
sustained Mr. Dokes’s termination. We affirm.
BACKGROUND
Mr. Dokes served in the U.S. Navy from 2000 to 2003,
when he was honorably discharged after suffering a
gunshot wound while he was on active duty. This wound
was apparently sustained during a burglary committed by
another person. Shortly after his discharge, Mr. Dokes was
diagnosed with post-traumatic stress disorder (“PTSD”)
said to be caused by the shooting. He began collecting
service-connected disability benefits from the Department
of Veterans Affairs. In 2005, Mr. Dokes applied for and
subsequently began receiving disability benefits from the
Social Security Administration. He continued to receive
Social Security benefits through January 2013.
Mr. Dokes began working for the Food and Nutrition
Service of the U.S. Department of Agriculture (“USDA”) in
October 2014. He held the position of Program Specialist,
in which he authorized and reauthorized retailers’
participation in the Supplemental Nutrition Assistance
Program.
On December 10, 2015, a grand jury in the Eastern
District of Missouri indicted Mr. Dokes and his wife on four
counts of Social Security fraud in violation of 18
U.S.C. § 641 during the period from 2006 through 2013,
before his USDA employment.
Mr. Dokes pled guilty to all four counts and agreed that
the government would have been able to prove at trial the
fact that, while receiving Social Security disability
payments, he embarked on various professional endeavors
inconsistent with his claim that PTSD rendered him
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DOKES v. DEPARTMENT OF AGRICULTURE 3
unemployable. These included, among other activities,
becoming a real estate agent, starting an investment
company (and other companies), authoring two books,
serving as a public official in the State of Missouri, and
running as a candidate for the Missouri House of
Representatives.
Mr. Dokes did not advise the USDA of his guilty plea.
But one of his coworkers brought the case to the attention
of USDA officials after learning of Mr. Dokes’s criminal
prosecution and guilty plea from a local news broadcast.
Mr. Dokes was placed on administrative leave.
Thereafter, on September 19, 2016, in his criminal
proceeding, Mr. Dokes was sentenced to five years of
probation and ordered to pay restitution in the amount of
$45,835.60. On October 25, 2016, the USDA terminated
him based on a single charge of “Conduct [U]nbecoming a
Federal Employee.” S. App’x 112.1 In its termination
notice, the USDA explained that Mr. Dokes’s position as a
Program Specialist was one of “public trust,” and concluded
that his “actions reflect[ed] poorly on the Agency’s
reputation,” in addition to “call[ing] into question [his]
fundamental credibility and trustworthiness.” S. App’x
113. Also pertinent to the USDA’s decision was the fact
that “the Agency learned of [Mr. Dokes’s] case during an
evening news broadcast,” not from his self-reporting to the
USDA. S. App’x 113. The deciding official at USDA noted
that she had considered Mr. Dokes’s PTSD but determined
that the seriousness of his condition did not “change the
fact that [he was] convicted of fraudulently obtaining
[S]ocial [S]ecurity benefits . . . by making false
statements.” S. App’x 113.
1 Citations to “S. App’x” are to the supplemental
appendix filed by the government.
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DOKES v. DEPARTMENT OF AGRICULTURE 4
Mr. Dokes appealed the USDA’s decision to the Board.
On June 26, 2018, an administrative judge issued an initial
decision affirming the USDA’s termination decision. The
initial decision rejected Mr. Dokes’s claims of procedural
error and found that the USDA proved by a preponderance
of the evidence the charge of conduct unbecoming a federal
employee, a nexus between the charged misconduct and
Mr. Dokes’s position, and the appropriateness of
termination as a penalty for the misconduct. The full
Board denied Mr. Dokes’s petition for review and affirmed
the initial decision on January 19, 2024.
Mr. Dokes seeks review from this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We may disturb the judgment of the Board only if its
decision is “(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). The Board’s fact findings are
reviewed for substantial evidence, and we give no deference
to its determinations on matters of law. See Brenner v.
Dep’t of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021).
The petitioner “bears the burden of establishing error in
the [Board’s] decision.” Jones v. Dep’t of Health & Hum.
Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016) (quoting Harris
v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir.
1998)).
Mr. Dokes principally argues that the Board abused its
discretion by refusing to permit him to present evidence
concerning his PTSD, which “could have affected the
outcome of [this] case.” Pet’r Informal Br. 2. In his reply,
Mr. Dokes suggests that neither the USDA nor the Board
considered his PTSD as a mitigating factor for his
misconduct. He further faults the Board for allegedly
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DOKES v. DEPARTMENT OF AGRICULTURE 5
permitting the USDA to “submit late evidence” without
providing him sufficient opportunity to respond. Id.
These arguments are without merit. Mr. Dokes fails to
show that the Board did not consider his evidence or
arguments regarding his PTSD, or that the USDA failed to
do so. Indeed, the Board’s decision expressly rejected
Mr. Dokes’s PTSD argument, while at the same time
observing that the USDA also rejected Mr. Dokes’s
contention that his PTSD diagnoses should serve as “a
mitigating factor.” S. App’x 41–43.
As for Mr. Dokes’s claim that the Board erred by
allowing the USDA to file evidence “18 months late,” Pet’r
Informal Br. at 2, Mr. Dokes takes issue with the USDA’s
supposedly late filing of certain documents it relied upon to
terminate him, which the Board ordered the USDA to
submit. It appears that Mr. Dokes possessed those same
documents and, indeed, included them in his initial appeal
to the Board. Mr. Dokes has failed to show any error that
“caused substantial harm or prejudice to his rights which
could have affected the outcome of the case.” Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)
(quoting Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
1378 (Fed. Cir. 1988)). “Procedural matters relative to
discovery and evidentiary issues fall within the sound
discretion of the [B]oard and its officials.” Id. Thus, there
is no merit to Mr. Dokes’s claim that he was deprived of an
adequate opportunity to respond to new, belatedly
introduced evidence.2
2 We likewise find no merit in Mr. Dokes’s additional
argument, raised explicitly before the Board but only
implicitly before this court, that the USDA improperly
terminated him before he had exhausted his criminal
appeals and postconviction proceedings. There is no
requirement for an agency to wait for an employee to
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DOKES v. DEPARTMENT OF AGRICULTURE 6
We have considered the remainder of Mr. Dokes’s
arguments and find them unpersuasive.
AFFIRMED
Costs
No costs.
exhaust challenges to a conviction before the agency may
terminate the employee. In fact, the governing statutes
suggest the opposite, providing that an employee must be
given “at least 30 days’ advance written notice [prior to
removal], unless there is reasonable cause to believe the
employee has committed a crime for which a sentence of
imprisonment may be imposed,” in which case the
employee is entitled only to 7 days to respond to the
proposed agency action. 5 U.S.C. § 7513(b) (emphasis
added).
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