Jose C. Ybarra v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSE C. YBARRA,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-1848
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-17-0422-I-2.
______________________
Decided: January 10, 2025
______________________
JOSE C. YBARRA, Charlotte, MI, pro se.
EVAN WISSER, 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 REYNA, TARANTO, and STARK, Circuit Judges.
PER CURIAM.
Case: 24-1848 Document: 18 Page: 1 Filed: 01/10/2025

-- 1 of 10 --

YBARRA v. DOJ 2
The U.S. Department of Justice employed Jose Ybarra
as a special agent for the Federal Bureau of Investigation
(FBI) until charging him with unprofessional off-duty
conduct and removing him from employment. After
unsuccessfully appealing his removal to the FBI’s
Disciplinary Review Board, Mr. Ybarra appealed his
removal to the Merit Systems Protection Board (Board).
The Board’s assigned administrative judge rejected his
challenges to the agency’s removal decision, Ybarra v.
Department of Justice, No. CH-0752-17-0422-I-2, 2018 WL
2463376 (M.S.P.B. May 30, 2018) (Initial Decision), and
the full Board agreed, adopting the Initial Decision as the
Board’s final decision, supplemented by one more finding
of fact supporting the result, Ybarra v. Department of
Justice, No. CH-0752-17-0422-I-2, 2024 WL 1231943, at
*1 (¶ 1), *7 (¶ 21) (M.S.P.B. Mar. 21, 2024) (Final Order).
Mr. Ybarra now appeals his removal to us. We affirm.
I
A
Mr. Ybarra joined the FBI as a Criminal Investigator
in 1998 and was later promoted to a GS-1811-13 Special
Agent position. In 2003, the Office of Professional
Responsibility (OPR) within the Department of Justice
proposed to remove Mr. Ybarra for several instances of
misconduct, as characterized by the Board:
threatening the physical safety of a support
employee; making inappropriate remarks to
female associates that were considered sexual in
nature; leaving an inappropriately aggressive
voice-mail message for a member of the public;
leaving unprofessional voice-mail messages for
female coworkers; and multiple interactions with
associates that disrupted the office.
Case: 24-1848 Document: 18 Page: 2 Filed: 01/10/2025

-- 2 of 10 --

YBARRA v. DOJ 3
Initial Decision, at 2.1 The relevant OPR official
sustained the charges but mitigated the penalty to a 45-
day suspension in 2004. Id. The official told Mr. Ybarra
that this would be his “final notice that offensive
interpersonal interactions will not be tolerated by the
Bureau” and that he would be removed if he “engage[d] in
any further misconduct involving the utterance of words
or actions of a threatening, offensive and/or sexual
nature.” Id.
In 2006, the FBI assigned Mr. Ybarra to the Detroit
Division, Lansing Resident Agency, to investigate crimes
against children. And no further incidents were reported
until years later. Between 2014 and 2016, Mr. Ybarra
engaged in several instances of misconduct, for which he
was suspended and otherwise penalized but not removed.
In March 2016, a female cashier at Meijer’s, a grocery
store, filed a police complaint against Mr. Ybarra for
persistent and unwanted advances. A few months later, a
minor employed at Dairy Queen and her mother also filed
a police complaint against Mr. Ybarra for inappropriate
behavior and harassment.
In January 2017, OPR issued a Report of
Investigation that recommended removal of Mr. Ybarra
from his employment because of “Unprofessional Conduct
- Off Duty” (FBI Offense Code 5.21)2—specifically, “his
behavior at Meijer’s and Dairy Queen.” Id. at 4. In May
2017, the OPR deciding official sustained the charge, and
the agency removed Mr. Ybarra from his position effective
1 For the Initial Decision, we cite the page numbers
of the version as provided in the Supplemental Appendix
filed in this court by respondent.
2 The FBI Offense Code was not included in the
record here or before the Board, but “the agency’s
description of what the Code contains does not appear to
be in dispute.” Final Order, at *5 (¶ 16).
Case: 24-1848 Document: 18 Page: 3 Filed: 01/10/2025

-- 3 of 10 --

YBARRA v. DOJ 4
June 1, 2017. Mr. Ybarra sought review of the removal
decision by FBI’s Disciplinary Review Board, which
affirmed OPR’s finding of misconduct and sustained the
removal. Id. at 5.
B
Mr. Ybarra appealed his removal to the Board. In its
Initial Decision, issued May 30, 2018, the Board found
that the agency had proved by a preponderance of the
evidence that Mr. Ybarra had engaged in misconduct
against employees at Meijer’s and Dairy Queen and that
the agency established a nexus between his misconduct
and the work of the FBI. Regarding nexus, the Board
found that his misconduct contravened the agency’s
primary mission—protecting people, especially protecting
children under the age of 18—as evidenced by the fact
that two individuals, one a minor, filed police reports “for
protection against him.” Id. at 7. It added that Mr.
Ybarra’s conduct affected management’s trust and
confidence in his job performance, as evidenced by his
local supervisor’s belief that Mr. Ybarra needs
“‘professional assistance’ before performing his full duties”
(earlier he had received “Excellent” ratings) and local law
enforcement partners’ indications that “they are
uncomfortable with [Mr. Ybarra] and do not want to work
with him.” Id.
The Board also upheld the agency’s removal penalty.
The Board recited the often-used analytic factors: “(1) the
type of offense the appellant committed, (2) his type of
employment, (3) his past disciplinary record, (4) his past
work record, (5) the effect of his conduct upon the service,
(6) penalties imposed for similar offenses, (7) standard
agency penalties, (8) any notoriety, (9) whether the
appellant was on notice to avoid the particular
misconduct at issue, (10) his potential for rehabilitation,
(11) any mitigating circumstances, and (12) the
availability of alternative sanctions.” Id. at 8 (citing
Case: 24-1848 Document: 18 Page: 4 Filed: 01/10/2025

-- 4 of 10 --

YBARRA v. DOJ 5
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–
06 (1981)). And it concluded that the penalty was “within
the tolerable bounds of reasonableness.” Id.
The Board found the following: Mr. Ybarra’s
misconduct demonstrated “a serious lack of judgment,”
that his interaction with the minor was “in direct
contravention of the FBI’s mission and his work
investigating crimes against children,” and ultimately
that because “he lost credibility and damaged his
relationships with the local law enforcement community,”
he was “unable to fulfill critical responsibilities as an
agent.” Id. Mr. Ybarra’s type of employment weighed
against him because “[l]aw enforcement officers may be
held to a higher standard of conduct than other federal
employees.” Id. (citing Negron v. Department of Justice,
95 M.S.P.R. 561, 573 (2004)). Mr. Ybarra’s disciplinary
record, namely, his 45-day suspension for misconduct in
2003, was a significantly aggravating factor. Removal
was within the range of penalties for the offense of
unprofessional conduct off-duty where an aggravating
factor is present. Id. at 9. Based on the penalties that
FBI previously imposed on Mr. Ybarra for his offensive
interpersonal actions and a police warning regarding the
Meijer’s incident, he was “clearly on notice to refrain from
offensive behavior with women.” Id. And although there
was “evidence of [his] positive rehabilitative potential”
(refraining from pursuing the Meijer’s cashier after
receiving a police warning, acknowledging his poor
judgment, and expressing remorse), id., other record
evidence—that he did not control his behavior, did not
seek out the professional assistance his supervisor
believed he needed, and “deflect[ed] responsibility for the
inappropriate conduct from himself to a teenage service
worker and her mother”—weighed against his
rehabilitative potential, id. at 9–10. The Board found
that the deciding official had considered mitigating
Case: 24-1848 Document: 18 Page: 5 Filed: 01/10/2025

-- 5 of 10 --

YBARRA v. DOJ 6
circumstances and determined that the Douglas factors
weighed in favor of the removal decision. Id. at 10.
C
On Mr. Ybarra’s petition for review, the full Board
upheld the removal by adopting the Initial Decision and
adding one fact providing further support for the nexus
finding—that Mr. Ybarra’s “persistent and inappropriate
advances toward the Meijer’s cashier adversely affected
the agency’s reputation because that individual was
aware that the appellant was an FBI agent.” Final Order,
at *3 (¶ 11); id. at *7 (¶ 21). The Board then considered
and rejected Mr. Ybarra’s challenges to the Initial
Decision’s penalty analysis. Id. at *4–7 (¶¶ 12–21).
Mr. Ybarra contended that the Board in the Initial
Decision should not have considered his 2003 suspension
as an aggravating factor because it “was too remote in
time.” Id. at *5 (¶ 17) (first citing Kehrier v. Department
of Justice, 27 M.S.P.R. 477 (1985); and then citing Bennett
v. Department of Transportation, 15 M.S.P.R. 686 (1983)).
The Board disagreed, explaining as follows:
[I]t was permissible for the agency to consider the
appellant’s 2003 suspension as an aggravating
factor but that the passage of time lessens its
import. Although none of the case law seems to
bar consideration of prior discipline due merely to
passage of time, we find that passage of time may
go to the weight that the prior discipline should be
accorded, along with the severity of the prior
discipline and whether the current disciplinary
action is being taken for similar reasons.
Id. at *6 (¶ 19). The Board then determined that “the
agency did not abuse its discretion in giving the
appellant’s 2003 suspension significant weight as an
aggravating factor” because Mr. Ybarra’s “prior discipline
was serious,” he had received an explicit warning that it
Case: 24-1848 Document: 18 Page: 6 Filed: 01/10/2025

-- 6 of 10 --

YBARRA v. DOJ 7
was his “final notice,” and “the prior suspension was
based largely on the same general type of behavior
underlying the removal at issue here, i.e., inappropriate
comments to female coworkers.” Id.
Mr. Ybarra also argued that his “excellent
performance history” constituted “evidence of his
rehabilitative potential.” Id. at *4 (¶ 14). But the Board
agreed with the administrative judge’s finding in the
Initial Decision that Mr. Ybarra “exhibited poor
rehabilitative potential.” Id. at *6 (¶ 20). While his work
performance was excellent, the Board stated, his charged
offense “[did] not relate to the appellant’s performance in
his position, but rather to his interpersonal conduct
outside the workplace.” Id. In particular, the Board
continued, weighing against his rehabilitative potential
were his response to the notice of proposed removal
(stating that “had the Dairy Queen service worker’s
mother called him instead of the police, he would have
known whether this girl was having issues that were
causing her to ‘engage superfluously’ with him and he
could perhaps have been recruited as a father figure or
‘standby babysitter’”) and his “lack of appreciation for the
seriousness of his misconduct” (as indicated by the fact
that the behavior he characterized as “off-duty flirtation”
led two people to seek police protection). Id. The Board
upheld the removal penalty. Id. at *7 (¶ 21).
Mr. Ybarra timely petitioned for review by this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1)(A).
II
We may set aside the Board’s decision only if it 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 petitioner bears the
Case: 24-1848 Document: 18 Page: 7 Filed: 01/10/2025

-- 7 of 10 --

YBARRA v. DOJ 8
burden of establishing reversible error in the Board’s final
decision. Sistek v. Department of Veterans Affairs, 955
F.3d 948, 953 (Fed. Cir. 2020). We review the Board’s
legal decisions without deference and its findings of fact
for substantial evidence. McIntosh v. Department of
Defense, 53 F.4th 630, 638 (Fed. Cir. 2022). “Substantial
evidence consists of ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Frederick v. Department of Justice, 73 F.3d
349, 352 (Fed. Cir. 1996) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).
To remove an employee, the government must prove,
by a preponderance of the evidence, that “(1) the charged
misconduct occurred, (2) there is a nexus between what
the employee did and disciplining the employee to
promote the efficiency of the service, and (3) the
particular penalty is reasonable.” Hansen v. Department
of Homeland Security, 911 F.3d 1362, 1366 (Fed. Cir.
2018). We “will not disturb a choice of penalty within the
agency’s discretion unless the severity of the agency’s
action appears totally unwarranted in light of all the
factors.” Mings v. Department of Justice, 813 F.2d 384,
390 (Fed. Cir. 1987); see also Lachance v. Devall, 178 F.3d
1246, 1251 (Fed. Cir. 1999).
Mr. Ybarra challenges the Board’s ruling only on the
ground that “the Board committed error and an abuse of
discretion by sustaining the removal penalty.” Ybarra
Informal Br. at 1. He argues that the Board erred in two
respects: its reliance on his 2003 suspension as an
aggravating factor and its finding that he lacked
rehabilitative potential. We reject both arguments.
A
Mr. Ybarra first argues that the Board’s reliance on
his 2003 suspension—14 years before his 2017 removal—
as an aggravating factor was legal error. Id. at 2. He
contends that the Board’s precedent precludes it from
Case: 24-1848 Document: 18 Page: 8 Filed: 01/10/2025

-- 8 of 10 --

YBARRA v. DOJ 9
considering discipline that was imposed so long ago. Id.
at 2–4 (relying on Bennett, 15 M.S.P.R. at 687, and
Kehrier, 27 M.S.P.R. at 480 n.1).
We are not persuaded by Mr. Ybarra’s argument that
“the passage of time alone” necessarily renders past
discipline irrelevant for the purpose of aggravation. Id.
He identifies no statute or rule or precedent of this court
so stating, and he does not explain why there should be
such a constraint on a federal employer. As for the two
Board decisions he cites, Bennett and Kehrier, neither one
establishes the rule that Mr. Ybarra proposes: At most,
they establish that timing can be a consideration, not that
the passage of time alone must render past discipline
irrelevant. Moreover, the specific reasoning in the two
decisions does not establish Mr. Ybarra’s proposed rule.
See Bennett, 15 M.S.P.R. at 687 (holding that a disparate
treatment claim could not invoke penalties imposed on air
traffic controllers who struck in 1970 in assessing
penalties imposed on air traffic controllers who struck in
1981); Kehrier, 27 M.S.P.R. at 480 n.1 (holding that an
employee’s “1974 suspension may be deemed too remote in
time to justify consideration in determining an
appropriate penalty for current charges,” which occurred
in 1982 (emphasis added)).
In this case, there is a reasonable justification for
considering Mr. Ybarra’s 2003 suspension as an
aggravating factor. His “prior discipline was serious,” he
had received an assertedly “final notice that offensive
interpersonal interactions will not be tolerated by the
Bureau,” and “the prior suspension was based largely on
the same general type of behavior underlying the removal
at issue here.” Final Order, at *6 (¶ 19). And contrary to
Mr. Ybarra’s contention, this consideration was not the
lone one supporting removal. The Board, in the Initial
Decision, recited others. See, e.g., Initial Decision, at 8
(“According to [the deciding official], the appellant is
unable to fulfill critical responsibilities as an agent
Case: 24-1848 Document: 18 Page: 9 Filed: 01/10/2025

-- 9 of 10 --

YBARRA v. DOJ 10
because he lost credibility and damaged his relationships
with the local law enforcement community.”); id. at 10
(“[The deciding official] told the appellant he displayed a
‘disturbing lack of reality awareness regarding the
consequences of [his] actions’ and determined he was
unsuitable for employment with the FBI.”). We see no
reversible error in the consideration of the 2003
suspension.
B
Mr. Ybarra argues that the Board failed to take into
account his “rehabilitative potential in assessing the
penalty of removal,” particularly as shown by his
“excellent performance.” Ybarra Informal Br. at 6–7
(citing multiple cases emphasizing the importance of
rehabilitative potential in a Douglas factor analysis). We
see no reversible error in this respect. Both the agency
and the Board did consider Mr. Ybarra’s rehabilitative
potential, including his performance record, and both
determined, on a reasonable basis, that the potential was
low. Initial Decision, at 9 (noting that Mr. Ybarra made
no claims “to have placed [] controls, internal or external,
on his behavior”), 10 (“[T]he record does not show [Mr.
Ybarra] received the help his supervisor believes was
required for full rehabilitation.”); Final Decision, at *6
(¶ 20) (discussing Mr. Ybarra’s “disturbing” response to
the notice of proposed removal and the fact that “he still
does not seem to understand” the “seriousness of his
misconduct.”).
III
We affirm the Board’s decision.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1848 Document: 18 Page: 10 Filed: 01/10/2025

-- 10 of 10 --