UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JUAN CASTRO,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-0714-18-0130-I-1

DATE: March 26, 2024

THIS ORDER IS NONPRECEDENTIAL1

Ronald P. Ackerman, Esquire, Los Angeles, California, for the appellant.

Eric Lazare, Esquire, San Diego, California, for the agency.

Thomas Davis, Los Angeles, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

sustained his removal under 38 U.S.C. § 714. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings 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. 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, 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. However, for the reasons

discussed below, we VACATE the initial decision and REMAND the case to the

regional office for further adjudication in accordance with this Remand Order. 

BACKGROUND

The appellant, formerly a Police Officer with the agency’s Long Beach

Healthcare System in Long Beach, California, appealed the agency’s decision to

remove him pursuant to 38 U.S.C. § 714 for the negligent performance of duties

in his use of excessive force against a patient and the patient’s relative. Initial

Appeal File (IAF), Tab 6 at 17-18, 86-92. The agency’s removal action rested on

a single charge in which the agency alleged that the appellant had kicked the

patient multiple times while he was sitting on the floor and punched the patient’s

relative, which violated agency policies regarding the use of force and the role of

an agency Police Officer. Id. at 17. After holding the appellant’s requested

hearing, the administrative judge issued an initial decision sustaining the

removal. IAF, Tab 24, Initial Decision (ID). Specifically, the administrative

judge found that, although the evidence showed that the appellant had not

delivered strikes as forceful as alleged in the agency’s charge, the record

supported a finding that the appellant had delivered three forceful thrusts to the

patient’s knee and pushed the patient’s relative, and that the appellant’s actions

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amounted to excessive force, in violation of agency policy. ID at 3-16. The

administrative judge found that the appellant had failed to use the degree of care

required under the circumstances, and he sustained the charge. ID at 16. The

administrative judge also found that 38 U.S.C. § 714 does not require that the

agency’s action promote the efficiency of the service but nevertheless concluded

that the agency’s action promoted the efficiency of the service. ID at 16-17.

Finally, the administrative judge found that, pursuant to 38 U.S.C. § 714, because

the agency’s decision was supported by substantial evidence, he was not

permitted to mitigate the penalty, and he sustained the removal. ID at 17. The

appellant has timely filed a petition for review, and the agency has filed a

response. Petition for Review (PFR) File, Tabs 3, 5.

ANALYSIS

On petition for review, the appellant argues that the administrative judge

incorrectly relied on inconsistent witness testimony, erroneous findings of fact,

and hearsay to find that the agency proved by substantial evidence that the

appellant kicked a patient. PFR File, Tab 3 at 6-12. The Board must give

deference to an administrative judge’s credibility determinations when they are

based, explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002). Although the Board may decline to defer to an administrative

judge’s credibility findings that are abbreviated, based on improper

considerations, or unsupported by the record, Redschlag v. Department of the

Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative

judge’s demeanor-based credibility findings merely because it disagrees with

those findings, Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372

(Fed. Cir. 2016). Our review of the record reflects that the administrative judge

made detailed, well-reasoned findings regarding the credibility and consistency of

witness testimony that are supported by the record. Additionally, hearsay is

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admissible in Board proceedings, and the administrative judge did not abuse his

discretion in considering hearsay in assessing the consistency of witness

testimony. ID at 12; see Shannon v. Department of Veterans Affairs,

121 M.S.P.R. 221, ¶ 15 (2014). We find no basis to disturb the administrative

judge’s findings of fact or his reasoned assessment of the facts in concluding that

the agency proved its charge by substantial evidence. ID at 3-16; see Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to

disturb the administrative judge’s findings where she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions on the issue

of credibility); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

Nevertheless, in light of developments in the case law after the initial

decision was issued, we remand this appeal for further adjudication on two issues.

First, the record shows that the deciding official sustained the charge under a

substantial evidence standard of proof. IAF, Tab 1 at 10; Hearing Transcript

at 49 (testimony of the deciding official). This was error. Although the Board

reviews a section 714 action by substantial evidence, the agency’s deciding

official may only sustain the charge if he finds it proven by preponderant

evidence. Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1298-1300

(Fed. Cir. 2021). We therefore remand this case for adjudication of whether the

agency’s application of the substantial evidence standard of proof was harmful

error. See Semenov v. Department of Veterans Affairs, 2023 MSPB 16,

¶¶ 21-25 & n.5.

Second, because the Board is prohibited from mitigating the agency’s

chosen penalty in a section 714 appeal, the administrative judge declined to

review the penalty. ID at 16-17. However, after the initial decision was issued,

the U.S. Court of Appeals for the Federal Circuit held that, notwithstanding its

lack of mitigation authority, the Board is nevertheless required to review the

agency’s penalty determination as part of its review of the agency’s decision as a

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whole. Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1323-27 (Fed.

Cir. 2021); Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1322-27

(Fed. Cir. 2021); Sayers v. Department of Veterans Affairs, 954 F.3d at 1375-79

(Fed. Cir. 2020). Therefore, on remand, the administrative judge should also

review the agency’s penalty determination according to the standard set forth in

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). See Semenov,

2023 MSPB 16, ¶¶ 44-50. 

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. On remand, the

administrative judge shall allow the parties to supplement the record with

additional evidence and argument on the issues of penalty and harmful error. He

shall then issue a new initial decision that addresses these issues. As to whether

the agency presented substantial evidence to prove its charge before the Board,

the administrative judge may adopt the findings from his previous initial decision,

as appropriate. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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