Raymond Stewart v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3137
RAYMOND STEWART,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Raymond Stewart, of Ocean Springs, Mississippi, pro se.
Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Assistant Attorney General; Jeanne E. Davidson,
Director; and Reginald T. Blades, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3137
RAYMOND STEWART,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Petition for review of the Merit Systems Protection Board in DE0752070282-I-1.
___________________________
DECIDED: June 4, 2008
___________________________
Before BRYSON and PROST, Circuit Judges, and ZAGEL, District Judge.*
PER CURIAM.
DECISION
Raymond Stewart petitions for review of a decision of the Merit Systems
Protection Board affirming a 30-day suspension imposed by his employer, the United
States Marshal’s Service. We affirm.
* Honorable James B. Zagel, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.

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BACKGROUND
Mr. Stewart was a Deputy United States Marshal serving as the Fugitive Task
Force Coordinator for the District of Kansas during the period in which the events at
issue took place. On February 12, 2006, a convicted murderer escaped from the
Lansing Correctional Facility in Lansing, Kansas. Mr. Stewart contacted Kansas state
officials to offer assistance with the investigation. The state officials provided Mr.
Stewart with a store receipt that contained the phone numbers of prepaid cell phones
that the fugitive had purchased. To track the fugitive, Mr. Stewart contacted the
Department’s Electronic Surveillance Unit (“ESU”) in St. Louis, Missouri, and provided
Warren Brock, an ESU Senior Investigator, with the cell phone numbers. Mr. Brock
informed Mr. Stewart that one of the fugitive’s cell phones had “hit” a cellular tower in
Alpine, Tennessee, indicating that the fugitive was likely within a 40 square-mile area
around Alpine. According to Mr. Stewart, Mr. Brock then asked him not to disseminate
the cell phone numbers.
On February 22, 2006, Mr. Stewart spoke with Deputy United States Marshal
Jeffrey Dill from the U.S. Marshal Service office in the Middle District of Tennessee. Mr.
Stewart informed Mr. Dill that ESU was tracking a fugitive and asked whether the
Tennessee office would be able to provide assistance over the weekend if needed. Mr.
Dill asked for more information, but Mr. Stewart declined to provide the information he
had about the fugitive’s location, instead stating, “At ESU’s request, I don’t feel
comfortable giving out that information.” After the conversation, Mr. Dill informed his
supervisor, Denny King, about Mr. Stewart’s unwillingness to disclose what he knew
about the fugitive’s location. Mr. King, the U.S. Marshal for the Middle District of

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2008-3137 3
Tennessee, called Mr. Stewart’s second-line supervisor, Chief Deputy U.S Marshal
Daryl Ingermanson, and informed Mr. Ingermanson about Mr. Stewart’s refusal to
provide information concerning the fugitive’s location. Mr. Ingermanson then instructed
Mr. Stewart to provide Michael Fielder, a Supervisory Deputy U.S. Marshal at the
Tennessee office, with all the information he had in reference to the case, although Mr.
Stewart disputes that he was told to disclose “all the information he had.”
Mr. Stewart called Mr. Fielder, but when Mr. Fielder asked about the fugitive’s
location, Mr. Stewart again responded that he could not disclose that information “at
ESU’s request.” As a result, Mr. King, along with other officials from the Tennessee
office, again contacted Mr. Ingermanson to complain about Mr. Stewart’s refusal to
provide information about the fugitive’s location. Mr. Ingermanson then had several
conversations with Mr. Stewart about his call to Mr. Fielder. According to Mr.
Ingermanson, during those conversations Mr. Stewart stated that ESU had advised him
not to disclose any information. To verify Mr. Stewart’s claim, Mr. Ingermanson called
Mr. Brock at ESU, who stated that he never instructed Mr. Stewart to withhold any
information. After speaking with Mr. Brock, Mr. Ingermanson again contacted Mr.
Stewart. According to Mr. Ingermanson, Mr. Stewart would not acknowledge that Mr.
Brock never instructed him to withhold information about the fugitive’s location.
Shortly after the fugitive was apprehended, the agency began an investigation
into Mr. Stewart’s actions. Following the investigation, the agency proposed to suspend
Mr. Stewart for 45 days based on three charges: lack of candor, failure to follow
instructions, and disrespectful conduct. The deciding official sustained the three

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2008-3137 4
charges but sustained the lack of candor charge on only two of the four factual
specifications. The deciding official also reduced the penalty to a 30-day suspension.
Mr. Stewart appealed the suspension to the Merit Systems Protection Board.
The administrative judge assigned to the case found that agency had not met its burden
with respect to the disrespectful conduct charge, but nevertheless affirmed the 30-day
suspension based on the charges of lack of candor and failure to follow instructions.
DISCUSSION
On appeal, Mr. Stewart first challenges the sufficiency of the evidence supporting
the lack of candor charge. The administrative judge sustained that charge on two
factual specifications. Specification A stated that Mr. Stewart “exhibited a lack of candor
when [he] told CDUSM Ingermanson that [he was] told by Inspector Brock not to reveal
the location and telephone number where the fugitive was located.” The administrative
judge found that Mr. Brock had not asked Mr. Stewart to withhold information
concerning the fugitive’s location, and that Mr. Stewart therefore showed lack of candor
when he told Mr. Ingermanson that ESU had advised him not to divulge that
information. Although the administrative judge found that Mr. Brock had asked Mr.
Stewart not to reveal the fugitive’s telephone number, the administrative judge ruled that
the agency had proved the “essence of its charge.” Mr. Stewart argues that the
administrative judge erred because the record shows that Mr. Stewart never said to Mr.
Ingermanson that Mr. Brock told him to withhold information, but rather he only stated
that he withheld information “at ESU’s request.” Even so, that difference does not
demonstrate that the administrative judge lacked an evidentiary basis to sustain the
charge based on Mr. Stewart’s failure to be forthcoming in his conversation with Mr.

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Ingermanson. See Aiu v. Dep’t of Justice, 70 M.S.P.R. 509, 519 (1996) (“The
information provided by the agency must be sufficiently specific to permit the employee
to properly respond to the agency's charge. . . . Therefore, the Board will not technically
construe the wording or specifications of a charge.”).
In any event, the administrative judge also sustained the charge based on a
second factual specification. Specification B stated that Mr. Stewart lacked candor
when he told Mr. Fielder that ESU had instructed him not to give out information about
the fugitive’s location. The administrative judge found that it was undisputed that Mr.
Stewart’s statement to Mr. Fielder was not entirely true and forthcoming. Mr. Stewart,
however, asserts that he made that representation to Mr. Fielder because the location
information had not yet been fully developed. The administrative judge found that
explanation to be credible. Under the Board’s decisional law, however, the agency
needed to show only that Mr. Stewart was not “fully forthcoming as to all facts and
information relevant to [the] matter.” Ludlum v. Dep’t of Justice, 87 M.S.P.R. 56, 62
(2000). It did not need to show that Mr. Stewart had no reason at all to make the
statement he made.
Mr. Stewart also challenges the sufficiency of the evidence with respect to the
second charge sustained by the Board: failure to follow instructions. That charge was
based on Mr. Stewart’s failure to provide Mr. Fielder with information regarding the
fugitive’s location after Mr. Ingermanson instructed Mr. Stewart to provide Mr. Fielder
with all the information he had. The administrative judge sustained that charge after
crediting Mr. Ingermanson’s testimony about his instructions to Mr. Stewart. Mr.
Stewart challenges the administrative judge’s credibility determination, arguing that Mr.

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2008-3137 6
Ingermanson told him to call Mr. Fielder but did not direct him to disclose all the
information he had. Credibility determinations, however, are virtually unreviewable.
See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). Here, the
administrative judge explained that it would be inherently improbable for Mr.
Ingermanson to instruct Mr. Stewart to call Mr. Fielder without directing Mr. Stewart to
provide information about the fugitive’s location, because Mr. Ingermanson had just
received a call from the Tennessee office complaining about Mr. Stewart’s refusal to
provide that information. We therefore affirm the finding that the agency proved its
second charge against Mr. Stewart.
Mr. Stewart also raises an affirmative defense of harmful error under 5 U.S.C.
§ 7701(c)(2)(A), alleging that the investigation into his conduct was negligently
performed. Mr. Stewart did not raise that argument before the Board, however, and he
has therefore waived it, for arguments not made before the Board may not be made for
the first time in this court. See White v. Dep’t of Justice, 328 F.3d 1361, 1372 (Fed. Cir.
2003); Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). In any event,
we find his argument unconvincing. Mr. Stewart argues that the investigator conducted
the investigation negligently because he asked Mr. Brock only one question about his
initial conversation with Mr. Stewart. Mr. Brock stated to the investigator that he did not
ask Mr. Stewart to withhold information about the fugitive’s cell phone numbers or
location. Even so, Mr. Stewart’s argument does not demonstrate any procedural error.
The administrative judge found that Mr. Brock requested that the fugitive’s cell phone
numbers not be disclosed, and Mr. Stewart does not dispute that Mr. Brock did not ask
him to withhold information about the fugitive’s location.

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Additionally, Mr. Stewart argues that the administrative judge erroneously denied
his request to call two witnesses to testify. The first was the official who conducted the
investigation into Mr. Stewart’s conduct. The administrative judge, however, did not rely
on the investigation report in sustaining the charges, and Mr. Stewart does not contend
that the investigating official’s testimony would have affected any of the administrative
judge’s factual conclusions. The second witness was another Deputy U.S. Marshal,
who Mr. Stewart contends would have testified that the investigation into Mr. Stewart’s
conduct was the result of a dispute between Mr. Stewart and Mr. Ingermanson. The
administrative judge, however, concluded that, even if Mr. Ingermanson initiated the
investigation out of personal animus towards Mr. Stewart, there was no evidence of
personal animus on behalf of the deciding official or the disciplinary panel that proposed
the suspension. For that reason, evidence of an argument between Mr. Stewart and
Ingermanson would not have affected the administrative judge’s decision in the case.
We therefore find that the administrative judge did not abuse her discretion by declining
to hear the testimony of those two individuals.
Mr. Stewart next argues that the charges do not have a sufficient nexus with the
efficiency of the service, as required by 5 U.S.C. § 7513(a). That argument is without
merit. The alleged conduct occurred while Mr. Stewart was on duty, and candor and a
willingness to follow supervisory instructions are qualities expected of any employee,
particularly a law enforcement officer.
Finally, Mr. Stewart argues that his suspension was an unreasonable penalty.
The deciding official considered each of the Douglas factors and, after doing so,
reduced the penalty to a 30-day suspension. Although the administrative judge did not

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2008-3137 8
sustain the agency’s third charge—disrespectful conduct—the deciding official testified
that he did not consider that charge when he imposed the 30-day suspension. We find
no error in the administrative judge’s determination that the penalty was reasonable for
the sustained charges.

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