Joey D. Gonzalez v. Department of Agriculture

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOEY D. GONZALEZ,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2023-1647
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-22-0395-I-1.
______________________
Decided: February 6, 2025
______________________
J OEY D. G ONZALEZ, Miami, FL, pro se.
RAFAEL SHAPIRO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA M.
MCCARTHY .
______________________
Before D YK, CLEVENGER , and P ROST , Circuit Judges.
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 2
P ER CURIAM .
Joey D. Gonzalez petitions for review of a decision of
the Merit Systems Protection Board (“Board”) affirming
the Department of Agriculture’s (“Agency”) termination of
Mr. Gonzalez for failure to maintain a condition of em-
ployment. See Gonzalez v. Dep’t of Agric., No. AT-0752-
22-0395-I-1 (“Gonzalez II”) (M.S.P.B. Dec. 16, 2022). We
affirm.
BACKGROUND
This case involves two decisions by the Board, but on-
ly the second decision is before us on review. Nonethe-
less, an understanding of both decisions is necessary.
Gonzalez I
On January 5, 2004, Mr. Gonzalez was hired as an In-
formation Technology (“IT”) Specialist at the Agency’s
Subtropical Horticultural Research Station (“ARS”).
Mr. Gonzalez was required to complete an SF85 “Ques-
tionnaire for Non-Sensitive Positions” background check,
which is used to screen employees that are assigned to
nonsensitive or low-risk positions. On August 10, 2018,
the Agency dismissed Mr. Gonzalez from federal service
for performance-based reasons.
On September 23, 2019, the Board in an Initial Deci-
sion reversed the Agency’s action and ordered
Mr. Gonzalez’s reinstatement effective August 10, 2018.
See Gonzalez v. Dep’t of Agric., No. AT-0432-19-0700-I-1
(M.S.P.B. Sept. 23, 2019) (“Gonzalez I”). The Agency
petitioned for review of Gonzalez I but placed
Mr. Gonzalez on paid administrative leave on Novem-
ber 20, 2019. The Agency restored him to service with
backpay and benefits on November 25, 2019.
On September 1, 2023, the Board issued a nonprece-
dential order dismissing the Agency’s petition for review
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 3
in Gonzalez I, ordering the Agency to restore
Mr. Gonzalez to federal service effective August 10, 2018.
By letter dated September 21, 2023, the Agency advised
Mr. Gonzalez that it had cancelled his removal effective
August 10, 2018, by restoring him to service on Novem-
ber 25, 2019, with backpay and benefits. On October 17,
2023, he filed a petition for enforcement, alleging that the
Agency had not complied with the order in Gonzalez I. An
administrative judge denied that petition, agreeing with
the Agency that it had complied with the Board’s decision
in Gonzalez I on November 25, 2019. See Gonzalez v.
Dep’t of Agric., No. AT-0432-18-0700-C-1, at 3 (M.S.P.B.
Jan. 17, 2024). On August 29, 2024, this court dismissed
Mr. Gonzalez’s petition for review of the enforcement
proceedings concerning Gonzalez I for failure to prosecute.
Gonzalez v. Dep’t of Agric., No. 2024-1672, 2024 WL
3984091 (Fed. Cir. Aug. 29, 2024) (nonprecedential).
Gonzalez II
After restoring Mr. Gonzalez to federal service after
the Board’s decision in Gonzalez I, the Agency notified
Mr. Gonzalez that it was implementing an IT reorganiza-
tion and consolidation, which would involve transitioning
Mr. Gonzalez’s ARS position to supervision under the
Agency’s Office of the Chief Information Office (“OCIO”).
On August 19, 2020, Agency Assistant Chief Information
Officer Lorna Drennen contacted Mr. Gonzalez regarding
the Agency’s consolidation of IT services. Ms. Drennen
notified Mr. Gonzalez that as result of the consolidation,
Mr. Gonzalez would be transitioned from his position at
ARS to OCIO. On December 8, 2021, OCIO administrator
Tawana Gaskins notified Mr. Gonzalez that to perform
his duties, he would need to undergo a more stringent
SF85P “Questionnaire for a Public Trust Position,” which
is used to screen employees assigned to moderate- to high-
risk public trust positions.
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 4
Mr. Gonzalez notified the Agency that he refused to
submit the required information for the background
check. On January 10, 2022, OCIO Business Services
Division Director Lisa Keeter placed Mr. Gonzalez on
absence without leave until he submitted the required
information for the background check. On May 4, 2022,
Frank Hoeppel terminated Mr. Gonzalez for failure to
satisfy a condition of employment.
Mr. Gonzalez appealed to the Board. On Decem-
ber 16, 2022, an administrative judge issued an Initial
Decision sustaining his dismissal. See Gonzalez II, at 16.
On January 20, 2023, that decision became the Final
Decision of the Board when Mr. Gonzalez did not petition
for review before the full Board (“Gonzalez II”).
Mr. Gonzalez thereafter timely petitioned this court for
review.
We have jurisdiction over Mr. Gonzalez’s petition for
review of Gonzalez II pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We may set aside the decision of the Board only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review the Board’s fact
findings for substantial evidence, and we give no defer-
ence 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) (quot-
ing Harris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467
(Fed. Cir. 1998)).
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 5
I
Mr. Gonzalez’s principal argument is that his May
2022 removal has “no force or effect” because the Agency
could not undertake its second removal action until the
Board’s decision in Gonzalez I became final.1 See Pet’r’s
Br. 8. In support of this contention, Mr. Gonzalez points
to a number of the Board’s previous decisions. See id.
(citing Jackson v. United States Postal Serv., 79 M.S.P.R.
144, 146 (M.S.P.B. 1998); Parker v. U.S. Postal Serv.,
46 M.S.P.R. 214, 219 (M.S.P.B. 1990); Fairley v. United
States Postal Serv., 63 M.S.P.R. 10, 13 (M.S.P.B. 1994)).
As a threshold matter, we are not bound by Board
precedent. See Vanieken-Ryals v. Off. of Pers. Mgmt., 508
F.3d 1034, 1041 (Fed. Cir. 2007). Moreover, in Coy v.
Department of Treasury, 43 F.4th 1334 (Fed. Cir. 2022),
we expressly rejected the notion that (when the second
decision is not inconsistent with the first decision) a “first
[removal] action must be final before the second action
can be initiated,” id. at 1339, explaining that to the extent
that the Board’s precedent was to the contrary, “we
disapprove of it,” id. at 1339 n.3; see also Gillebeau v.
Dep’t of Navy, 362 F.3d 1329, 1331, 1333 (Fed. Cir. 2004).
II
Mr. Gonzalez also argues that the Board committed
reversible error in finding that the Agency had properly
weighed the factors set forth in Douglas v. Department of
Veterans Affairs, 5 M.S.P.R. 280 (M.S.P.B. 1981), and in
denying his motion to compel the production of documents
1 To the extent that Mr. Gonzalez argues that the
Agency failed to comply with the Board’s order in Gonza-
lez I to restore him to service prior to his May 2022 dis-
missal, the Board’s contrary conclusion is supported by
substantial evidence.
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 6
related to other Agency positions. Neither argument has
any merit.
With respect to the Board’s analysis of the Douglas
factors, Mr. Gonzalez argues that the evidence in the
record demonstrated that the Agency “did not consider
any other alternative but dismissal” and ignored
Mr. Gonzalez’s “14 years of exceptional service with the
Agency where most if not all, of his evaluations before
2017 were in the range of superior and outstanding.”
Pet’r’s Br. 16. Mr. Gonzalez also points to Mr. Hoeppel’s
testimony that he did not “look at any other alternative
other than firing [him]” in support of this position. Pet’r’s
Br. 15. We do not see any error in the Board’s considera-
tion of the Douglas factors. We have repeatedly explained
that the Douglas factors need not “be applied mechanical-
ly” in every case, since the inquiry is inherently fact
specific. Nagel v. Dep’t of Health & Hum. Servs., 707 F.2d
1384, 1386 (Fed. Cir. 1983). This is particularly the case
when an employee is removed for failing to maintain a
threshold requirement. See Rodriguez v. Dep’t of Home-
land Sec., No. 2023-1833, 2023 WL 8494741, at *4
(Fed. Cir. 2023) (nonprecedential) (“It is well-established
that the Board does not need to apply the Douglas factors
if the removal action is based on an employee’s failure to
maintain a security clearance.”).
The Board considered testimony of Agency officials
that in light of “the importance of agency systems and
data to the functions of . . . Government, it is imperative
that all employees are deemed suitable for Federal em-
ployment based on a successful background investiga-
tion.” Pet’r’s App’x 8. The Board found reasonable the
Agency’s conclusion that that Mr. Gonzalez’s misconduct
was therefore “serious,” since he “could not perform his IT
duties without a favorable background investigation, . . .
the agency clearly informed [him] of this requirement, . . .
and [his] eighteen years of service, while mitigating, did
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GONZALEZ v. DEPARTMENT OF AGRICULTURE 7
not outweigh the seriousness of his misconduct.” Id. We
see no error with the Board’s analysis.
Mr. Gonzalez finally argues that the Board erred in
denying his motion to compel discovery regarding other
Agency positions. The Board properly found that those
documents were not relevant. Mr. Gonzalez contends that
those documents might have revealed that he could have
been considered for other potential assignments. The
Agency was not required to consider alternative reas-
signments because Mr. Gonzalez was removed for failing
to comply with a required security clearance. See Hesse v.
Dep’t of State, 217 F.3d 1372, 1381 (Fed. Cir. 2000).
CONCLUSION
We have considered Mr. Gonzalez’s additional argu-
ments and are not persuaded. The Board’s decision is
affirmed.
AFFIRMED
COSTS
No costs.
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