UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH AIKEN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DA-0752-14-0152-I-1

DATE: May 18, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

Danny Peters, El Paso, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s removal action. Generally, we grant petitions such as this 

one only when: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the judge’s rulings 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b).

BACKGROUND

¶2 The appellant allegedly made false statements to federal law enforcement 

officers regarding a coworker in January 2011 while serving as a civilian military 

employee stationed in Afghanistan. Initial Appeal File (IAF), Tab 4, Subtab 4c at 

35-36, Subtab 4e at 32-34, 46-50; see IAF, Tab 1 at 11, Tab 4, Subtab 4e at 12, 

14-16. He subsequently confessed that he had fabricated the statements but then 

alleged that the confession was obtained through coercion. IAF, Tab 4, Subtab 4c 

at 37, 39-41, Subtab 4e at 94-99. He resigned from his position effective 

March 19, 2011. IAF, Tab 19, Exhibit (Ex.) 4J. 

¶3 On December 5, 2011, the agency appointed him to his current position of a 

GS-12 Quality Assurance Specialist in Fort Bliss, Texas. IAF, Tab 19, Ex. 4L. 

The agency asserted that its management officials at Fort Bliss were unaware of 

the appellant’s activities regarding the alleged false statements until May 2013,

when they learned that the appellant had been indicted and was scheduled for a 

criminal trial. IAF, Tab 15 at 2. On June 27, 2013, the appellant was convicted 

in the U.S. District Court for the Western District of Texas on two counts of 

making false statements to law enforcement under the criminal statute, 18 U.S.C. 
3

§ 1001, and was sentenced on September 20, 2013. IAF, Tab 4, Subtab 4e at 1-6. 

The agency proposed his removal on October 17, 2013. IAF, Tab 1 at 11-13. 

Effective December 9, 2013, the agency removed the appellant based on the 

following two charges: (1) making false statements to law enforcement; and 

(2) conduct unbecoming a federal employee. Id. at 10, 14-16. The appellant 

appealed his removal to the Board and requested a hearing. Id. at 1-9. He 

disputed both charges and asserted the affirmative defense of harmful error. Id.

at 6; IAF, Tab 8.

¶4 After holding the requested hearing, the administrative judge issued an 

initial decision affirming the removal action. IAF, Tab 25, Initial Decision (ID) 

at 1, 11. The administrative judge sustained both charges, found a nexus between 

the sustained misconduct and the efficiency of the service, and determined that 

the penalty was within the bounds of reasonableness. ID at 2-5, 7-11. 

Specifically, the administrative judge applied the doctrine of collateral estoppel 

to sustain the first charge. ID at 4-5. The administrative judge also found that 

the appellant failed to prove his affirmative defense of harmful error. ID at 5-7.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly applied the doctrine of collateral estoppel to 

sustain the first charge.

¶6 In his petition for review, the appellant appears to dispute the 

administrative judge’s application of collateral estoppel to sustain the charge of 

making false statements to law enforcement. PFR File, Tab 1 at 4. In applying 

this doctrine, the administrative judge relied on the criminal trial that litigated the 

issue of whether the appellant made a false statement to law enforcement officers

and the appellant’s subsequent conviction. ID at 4. Under the doctrine of 

collateral estoppel, a judgment on the merits in one lawsuit precludes the 

relitigation of the same issue in a second suit, regardless of whether the first and 
4

second suits were based on the same cause of action. Raymond v. Department of 

the Army, 34 M.S.P.R. 476, 480 (1987). Collateral estoppel, or issue preclusion,

is appropriate when: (1) the issue is identical to that involved in the prior action; 

(2) the issue was actually litigated in the prior action; (3) the determination on the 

issue in the prior action was necessary to the resulting judgment; and (4) the party 

against whom issue preclusion is sought had a full and fair opportunity to litigate 

the issue in the prior action, either as a party to the earlier action or as one whose 

interests were otherwise fully represented in that action. McNeil v. Department of 

Defense, 100 M.S.P.R. 146, ¶ 15 (2005); see Kroeger v. U.S. Postal Service, 

865 F.2d 235, 239 (Fed. Cir. 1988).

¶7 The appellant has not provided evidence or argument to dispute the 

administrative judge’s findings regarding these four factors, which appear to be 

supported by the record. See ID at 2-5; see also 5 C.F.R. § 1201.115. To the 

extent that the appellant is arguing that collateral estoppel does not apply because 

he is appealing his criminal conviction to the U.S. Court of Appeals for the Fifth 

Circuit, we are not persuaded. See IAF, Tab 8 at 7. The pendency of an appeal 

does not suspend the operation of an otherwise final judgment as collateral 

estoppel unless the appeal removes the entire case to the appellate court and 

constitutes a proceeding de novo. Lively v. Department of the Navy, 31 M.S.P.R. 

318, 321 (1986). The appellant has not indicated that the appellate court review 

of his criminal conviction is de novo rather than on the record, and concurrent 

Board proceedings will not improperly interfere with the court’s review. See Rice 

v. Department of the Treasury, 52 M.S.P.R. 317, 321 (1992). Accordingly, we 

find that the administrative judge properly applied collateral estoppel to sustain 

the first charge.

The administrative judge properly sustained the second charge.

¶8 The appellant also disputes the second charge of conduct unbecoming a 

federal employee. PFR File, Tab 1 at 5. He argues that the second charge should 

“fail” because, “if the agency is to be believed that it failed to take any 
5

disciplinary action when it learned of the alleged false statements, it cannot take 

action several years later.” Id. The Board has considered “stale charge” claims 

as raising the equitable defense of laches, which bars an action when an 

unreasonable delay in bringing the action has prejudiced the subject of the action. 

Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶ 10 (2002). As 

explained below, infra ¶¶ 9, 13, the appellant resigned from his former position in 

March 2011 shortly after admitting that he made false statements, see IAF, Tab 4, 

Subtab 4e at 94-99, Tab 19, Ex. 4J, and the agency acted promptly following his 

conviction and sentencing in 2013. Thus, the record does not support a finding of 

delay. Further, the party asserting laches must prove both unreasonable delay and 

prejudice. Salter, 92 M.S.P.R. 355, ¶ 10. The appellant has not shown that any 

delay by the agency was unreasonable and has not asserted that any delay was 

prejudicial to his appeal. Accordingly, we find that the appellant has not proven 

the equitable defense of laches and we conclude that the administrative judge 

properly sustained the second charge. 

The appellant has failed to prove his affirmative defense of harmful error.

¶9 The appellant reiterates his argument below that the agency cannot 

discipline him twice for the same conduct. PFR File, Tab 1 at 4-6; see Cooper v. 

Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5 (2012) (stating that the 

Board has long held that an agency cannot impose a disciplinary or adverse action 

more than once for the same misconduct), aff’d, 515 F. App’x 897 (Fed. Cir. 

2013). The administrative judge considered the appellant’s argument and found 

that he failed to establish that the agency imposed discipline or an adverse action 

more than once for the same misconduct. ID at 5-7; see IAF, Tab 1 at 6, Tab 8 at 

7-8. The administrative judge also found that, although the appellant may have 

resigned in anticipation of discipline in 2011 and felt the environment to be 

intolerable, there was no evidence in the record that the agency disciplined him 

based on the misconduct. ID at 6-7. The administrative judge emphasized that 

the appellant is appealing his removal, which was based on his 2013 conviction. 
6

ID at 7. The appellant fails to provide a reason to disturb the administrative 

judge’s determination that the agency did not impose a disciplinary action more 

than once for the same misconduct.

2

 See Crosby v. U.S. Postal Service, 

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative 

judge’s findings when she considered the evidence as a whole, drew appropriate 

references, and made reasoned conclusions).

¶10 The appellant also argues that the agency should have known about the 

allegations of misconduct when they rehired him at Fort Bliss and that “a failure 

to inquire into a prospective employee’s background should not be accepted by 

the Board.” PFR File, Tab 1 at 4-5. The administrative judge considered the 

testimony of the approving official for the appellant’s hiring at Fort Bliss and

found that “the hiring authorities did not have knowledge of the incidents that 

occurred in Afghanistan in 2011.” ID at 8; see IAF, Tab 21, Hearing Compact 

Disc (HCD) (13:53-14:30). The administrative judge also considered the 

testimonies of the approving official and the supervisor at the Civilian Personnel 

Advisory Center regarding the hiring procedures that applied to the appellant as

the spouse of an active-duty military member. ID at 8; see HCD (16:50-42:50). 

The administrative judge concluded that “the fact that the agency hired the 

appellant upon his wife’s assignment to Fort Bliss, does not preclude the agency 

from taking disciplinary action based on the appellant’s 2013 conviction.” ID at 

8. We find no basis to disturb the administrative judge’s well-reasoned finding. 

See Crosby, 74 M.S.P.R. at 105-06.

The appellant fails to provide a reason to address his new argument that the 

agency violated his constitutional right to due process.

¶11 The appellant argues for the first time on review that the agency denied him 

a meaningful opportunity to be heard in violation of the Constitution. PFR File, 

 2 Further, the administrative judge informed the parties in the summary of the 

telephonic prehearing conference that the appellant’s resignation in March 2011 is not 

part of the appeal except as it relates to his removal. IAF, Tab 17 at 4-5. 
7

Tab 1 at 3-4, 6. Specifically, he alleges that the agency denied him the ability to 

speak to the proposing official and submits evidence showing that the agency

denied him access to the building and that the proposing official refused to speak 

with him. Id. at 3-4, 7-8. However, we decline to address this new argument 

further because the appellant has not shown that it is based on any material and 

previously unavailable evidence. See 5 C.F.R. § 1201.115(d).

The agency has proven that the penalty of removal promoted the efficiency of the 

service.

¶12 The appellant argues that his removal did not promote the efficiency of the 

service because of the “delay” between his alleged misconduct and his removal. 

PFR File, Tab 1 at 6. We find that the lapse of time between the dates of the 

alleged incidents in January 2011 and the effective date of his removal in 

December 2013 does not preclude a determination that the penalty promotes the 

efficiency of the service on the facts of this case. See, e.g., Allred v. Department 

of Health & Human Services, 23 M.S.P.R. 478, 479-80 (1984) (finding that the 

presiding official’s reliance on the agency’s delay in initiating the adverse action 

as evidence that there was an absence of nexus is misplaced), aff’d, 786 F.2d 

1128 (Fed. Cir. 1986); Kumferman v. Department of the Navy, 19 M.S.P.R. 5, 6-7 

(1984) (finding that a sufficient nexus exists between the appellant’s misconduct 

and the efficiency of the service despite the agency’s 21-month delay in initiating 

the removal action), aff’d, 785 F.2d 286 (Fed. Cir. 1986). 

¶13 Moreover, we find that the agency was unable to implement an earlier

penalty because the appellant resigned in March 2011, just a few weeks after he 

admitted to making false statements. See IAF, Tab 4, Subtab 4e at 94-99, Tab 19, 

Ex. 4J. The appellant disputes the administrative judge’s finding that the Fort 

Bliss hiring authorities did not have knowledge of the incidents that occurred in 

Afghanistan in 2011. PFR File, Tab 1 at 4-6; see ID at 8. However, he does not 

provide any persuasive basis to disturb the administrative judge’s finding, which 

is supported by the record. ID at 8; HCD (13:53-14:30); see 5 C.F.R. § 1201.115. 
8

We find that the agency acted promptly after the appellant was convicted in June 

2013 and sentenced in September 2013 by proposing his removal in October 

2013. See IAF, Tab 1 at 11-13. Therefore, we find that the appellant has not 

shown any persuasive reason to disturb the administrative judge’s finding that his

removal promoted the efficiency of the service.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11.
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If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for 

information regarding pro bono representation for Merit Systems Protection 

Board appellants before the Federal Circuit. The Merit Systems Protection Board 

neither endorses the services provided by any attorney nor warrants that any 

attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board