UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SCOTT B. FOSTER,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-14-0589-I-1

DATE: August 19, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael P. Balaban, Esquire, Las Vegas, Nevada, for the appellant.

Shari C. Mauney, Esquire, Phoenix, Arizona, 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 his demotion. 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 administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. 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, 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 agency demoted the appellant from his position as a Supervisory Civil 

Engineer, GS-13, to that of a Civil Engineer, GS-12, on based on three charges: 

(1) failure to follow instructions; (2) unauthorized purchases; and 

(3) inappropriate conduct. Initial Appeal File (IAF), Tab 4 at 10-14, 208‐13. 

The administrative judge found jurisdiction over the appeal and, after holding a 

hearing, affirmed the agency’s action. Initial Appeal File (IAF), Tab 15, Initial 

Decision (ID). 

¶3 In his initial decision, the administrative judge sustained the two

specifications under the charge of failure to follow instructions. ID at 2-5; IAF,

Tab 4 at 208‐09. He rejected the appellant’s argument that the instructions at 

issue in the first specification were insufficiently clear, instead finding that the

February 14, 2013 email message transmitting those instructions, combined with 

contemporaneous verbal reinforcement from the appellant’s supervisor,

established by preponderant evidence that the appellant both received and 

understood the instruction that he was not to permit one of his subordinates to 

purchase items using his Government credit card without prior approval. 

ID at 4‐5. As to the second specification, the administrative judge found that the 
3

agency similarly established that the appellant failed to follow an instruction to 

forward the invitation to a meeting he had with officials in another agency 

component concerning a potential detail position to their office. ID at 5. 

¶4 On the unauthorized purchases charge, the administrative judge found that,

regardless of the appellant’s explanations and justifications for doing so, the 

record reflected that he had not received specific approval for the emergency 

medical technician (EMT) or scuba expenditures set forth in the two 

specifications even though he understood that such advance approval was 

required. The administrative judge sustained both specifications on that basis. 

ID at 6-7; IAF, Tab 4 at 209-10. With respect to the inappropriate conduct 

charge, the administrative judge cited both the appellant’s acknowledgment that 

he made the statements set forth in the agency’s proposal, along with the 

consistent testimony of the other two individuals involved in the incident as to his 

demeanor when making those statements, to sustain the remaining two 

specifications and find that the agency established the charge. ID at 2 n.1, 7-8; 

IAF, Tab 4 at 210-11. 

¶5 The administrative judge also found that the agency established a nexus 

between the sustained misconduct and the efficiency of the service, and he 

determined that the penalty was reasonable. ID at 9-10. 

¶6 The appellant filed a timely petition for review of the initial decision. 

Petition for Review (PFR) File, Tab 1. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 To prove a charge of failure to follow instructions, an agency must establish 

that the employee: (1) was given proper instructions; and (2) failed to follow the 

instructions, regardless of the employee’s intent. E.g., Powell v. U.S. Postal 

Service, 122 M.S.P.R. 60, ¶ 5 (2014). Even where there is substantial reason to 

believe that an order is improper, an employee first must obey the order and then 

challenge its validity, except in “extreme or unusual circumstances” in which he 
4

would be placed in a clearly dangerous situation or which would cause him 

irreparable harm. Pedeleose v. Department of Defense, 110 M.S.P.R. 508, 

¶¶ 16‐17, aff’d, 343 F. App’x 605 (Fed. Cir. 2009). This rule reflects the 

fundamental management right to expect that its decisions will be obeyed and its 

instructions carried out. Id., ¶ 16. Exceptions to the rule are not based on the 

correctness of the employee’s objections to the order but instead apply in 

situations in which there could be a significant adverse impact on him from 

cooperation with an order that might be improper. Id., ¶ 18. None of these 

exceptions apply in this matter, however, as the appellant did not contest the 

propriety of either of the instructions at issue in this appeal. 

¶8 Concerning the first specification of failure to follow instructions, the 

appellant contends on review that his supervisor’s February 2013 instruction was 

unclear, and he claims that, after an October 2013 email which made the 

instruction more clear, he followed it. PFR File, Tab 1. Although he asserts that 

the agency failed to provide the February email as evidence, the appellant cites 

his reply to it, which is not only a part of the record, but also contains the text of 

the email in question. Id. at 4; IAF, Tab 5 at 6. Importantly, the appellant’s reply

to that email indicates not only that he understood the instruction that his 

subordinate was not to use his Government credit card, but also indicates his 

explicit agreement to follow the instruction. IAF, Tab 5 at 6. Moreover, in a 

colloquy with the administrative judge at the end of the hearing, the appellant 

testified that his supervisor verbally followed up with him soon after the

February 2013 email. IAF, Tab 11, Hearing Compact Disc (HCD). Contrasting 

this evidence with the appellant’s assertion in his post‐hearing statement that he 

was “not aware for certain” that his subordinate was not allowed to use his 

Government credit card without permission, IAF, Tab 14 at 6, we agree with the 

administrative judge that, under these circumstances, the appellant “fully 

understood that he needed such approval, yet went ahead with the charges 
5

anyway,” ID at 6-7. The appellant provides new evidence with his petition for 

review, a screen shot of his email inbox sorted to show emails sent to him from 

the agency officials involved in this matter. PFR File, Tab 1 at 9. Under 

5 C.F.R.§ 1201.115, the Board will not consider evidence submitted for the first 

time with the petition for review absent a showing that it was unavailable before 

the record was closed despite the party’s due diligence. Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing, and, 

in any event, the evidence fails to make the point that the appellant seeks to 

establish, i.e., that he did not receive the instruction for his subordinate not to use 

his Government credit card until October 2, 2013. PFR File, Tab 1 at 4-5, 9. 

Thus, we agree with the administrative judge’s finding that the appellant received 

a proper instruction and he did not follow it. 

¶9 Regarding the second specification under the first charge, the appellant 

argues that he could not have followed this instruction because it was not possible 

for him to have forwarded the invitation to the meeting as instructed because 

someone else created it and that, regardless of his actions, the individual who had 

instructed him to do so would not have been able to attend the meeting involved 

anyway. PFR File, Tab 1 at 5. Again, the appellant did not contest the propriety 

of this instruction, and he explicitly acknowledged that he failed to follow it. 

ID at 5. Further, even if it were not possible for the appellant to forward the 

invitation electronically, he could have simply printed the invitation to the 

meeting and handed it to the individual who requested it. Whether that individual 

was available to attend the meeting is not pertinent to the analysis. Thus, we 

agree with the administrative judge’s determination to sustain this specification

and the charge. ID at 5. 

¶10 As for the unauthorized purchases charge, the appellant claims that the 

initial decision misidentifies the actual credit card on which the alleged 

unauthorized charges were made as an Engineering Services Office credit card 

rather than the employee’s own Government credit card. PFR File, Tab 1 at 5-6; 
6

ID at 5-6. He further argues that his supervisor knew of the purchases of training 

and supplies for EMT (specification 1) and scuba (specification 2) operations in 

advance but did not object to them. Id. He also reiterates his arguments from 

below that the expenditures were justified. PFR File, Tab 1 at 6. The 

administrative judge found that, regardless of the appellant’s justifications for 

making the purchases at issue, the record reflected that he failed to get approval 

before allowing his subordinate to use his Government credit card as instructed,

and he sustained the charge. ID at 5-7. The appellant provides what appears to 

be new evidence, two email messages dated after the close of the record below 

commending his subordinate for using his EMT skills to assist a colleague injured 

at a remote site. PFR File, Tab 1 at 10-14. Nevertheless, even if the expenditures 

were arguably laudable, the fact remains that they were not authorized. Because

we agree that the instruction for the appellant to get prior approval for the 

expenditures involved was proper and that he understood it, and in light of his 

admission that he did not do so with these two expenditures, we agree that the 

agency established this charge. 

¶11 As to the inappropriate conduct charge, the appellant contrasts statements in 

the record attesting to his character with the contrary description set forth in the 

specifications for this charge, and he claims that he had witnesses who were to 

testify as to his demeanor. Id. at 6; IAF, Tab 4 at 66-69, 210-11. As discussed 

below, our review of the hearing CD reflects that the appellant did not seek to call 

these witnesses at the hearing. The administrative judge determined that the 

agency proved its first two specifications of inappropriate conduct, 2 finding that 

the credible hearing testimony of the other two individuals involved in the

meeting at issue was consistent with the agency’s specifications. ID at 7-8; IAF,

Tab 4 at 210-11. Considering the administrative judge’s finding that the 

appellant’s testimony “basically acknowledged that he made the statements 

 2 At the hearing, the agency withdrew the third specification of the third charge. 

ID at 8 n.2. 
7

attributed to him in these specifications” in response to what he perceived as 

agency officials’ attempt to make him “squirm,” we agree that the agency 

established its charge. ID at 8. The administrative judge also found that the 

agency established a nexus between the sustained misconduct and the efficiency 

of the service, that the deciding official considered the relevant Douglas factors, 

and that the penalty was within the tolerable bounds of reasonableness. 

ID at 9‐10; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 

(1981) (providing a nonexhaustive list of factors relevant to determining the 

appropriateness of a penalty for misconduct). 

¶12 The appellant argues on review that his office is being investigated for 

corruption and implies that the agency demoted him because of questions he 

raised about money that was intended but not used for bridge inspections, rather 

than for the charged misconduct. PFR File, Tab 1 at 6-7. With his petition for 

review, he provides a copy of several newspaper stories concerning a Federal 

criminal investigation of alleged financial misconduct in his agency and a 

memorandum from the agency’s commissioner regarding the agency’s ethical 

culture in light of those allegations, all of which date from after the close of the 

record below. Id. at 15-18. The appellant bases his argument here in part on 

documents already in the record and partly on events occurring after the hearing, 

id. at 7, but he did not make this argument below, nor did he indicate in his initial 

appeal that he had filed a whistleblowing complaint with the Office of Special 

Counsel, IAF, Tab 1. 

¶13 The Board generally will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Even though some of 

the appellant’s evidence dates from after the close of the record and is therefore 

new, it is not material because he admits that he does not know how the money 

involved was spent. PFR File, Tab 1 at 7. Importantly, the documents that he 
8

proffers on review show no motive for the agency officials involved in this matter 

to engage in reprisal against him. 

¶14 The appellant also challenges the penalty as too severe, and he contrasts the 

“fully superior” performance rating given him by his supervisor in January 2013 

and a June 2013 cash award with hearing testimony indicating that he was 

reckless and displayed poor judgment. Id. at 7-8. However, the appellant’s 

successful performance rating and awards do not preclude him from having 

committed the misconduct found in this matter. Moreover, as the administrative 

judge found, the record reflects that the deciding official considered the relevant 

Douglas factors in making his determination. We note, for instance, the 

indifference toward established processes and disregard for instructions along 

with the lack of potential for rehabilitation that the deciding official found are 

significant aggravating factors, particularly in light of the appellant’s status as a 

supervisor. Hill v. Department of the Army, 120 M.S.P.R. 340, ¶ 15 (2013) 

(observing that it is appropriate for agencies to hold supervisors to a higher 

standard of conduct than nonsupervisory employees). 

¶15 The appellant also argues that the administrative judge allowed the agency 

to present its case first, which did not leave him enough time to call all of his 

witnesses, particularly those who would have corroborated his testimony. PFR 

File, Tab 1 at 4. However, our review of the hearing CD does not reveal that the 

appellant objected to any of the administrative judge’s rulings as to witnesses nor 

does it appear that the appellant unsuccessfully sought to call any further 

witnesses at the hearing. The appellant’s failure to timely object to rulings on 

witnesses precludes his doing so on petition for review. Tarpley v. U.S. Postal 

Service, 37 M.S.P.R. 579, 581 (1988). 

¶16 The appellant notes that the Board’s e-Appeal Repository incorrectly 

labeled part of one of his submissions as part of the agency’s response and that 

the initial decision erroneously identifies an individual as his supervisor. PFR 

File, Tab 1 at 4-5. Regardless, there is no evidence that any such error affected 
9

the administrative judge’s decision. An adjudicatory error that is not prejudicial 

to a party’s substantive rights provides no basis for reversal of an initial decision. 

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). The 

appellant also claims that the administrative judge failed to address all of his 

evidence. PFR File, Tab 1 at 5. However, the administrative judge’s failure to 

mention all of the evidence of record does not mean that he did not consider it in 

reaching his decision. Marques v. Department of Health & Human Services, 

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 U.S. 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 U.S. 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 
10

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. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, 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.

______________________________

Jennifer Everling

Acting Clerk of the Board