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Hoofman v. Army

Hoofman v. Army

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Published by FedSmith, Inc.
Hoofman v. Army (2013-3029)
Hoofman v. Army (2013-3029)

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Categories:Types, Business/Law
Published by: FedSmith, Inc. on Jun 13, 2013
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07/10/2013

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N
OTE
: This disposition is nonprecedential.
United States Court of Appealsfor the Federal Circuit
 ______________________ ROBERT HOOFMAN,
 
 Petitioner,
 
v.
 
DEPARTMENT OF THE ARMY,
 
Respondent.
 
 ______________________ 
2013-3029
 ______________________ 
Petition for review of the Merit Systems ProtectionBoard in No. SF0752110266-I-1.
 ______________________ 
Decided: May 13, 2013
 ______________________ 
R
OBERT
H
OOFMAN
, of Anchorage, Alaska, pro se. A 
NTONIA 
R.
 
S
OARES
, Trial Attorney, Commercial Liti-gation Branch, Civil Division, United States Departmentof Justice, of Washington, DC, for respondent. With himon the brief were S
TUART
F.
 
D
ELERY 
, Principal Deputy Assistant Attorney General, J
EANNE
E.
 
D
 AVIDSON
, Direc-tor, and F
RANKLIN
E.
 
W
HITE
,
 
J
R
., Assistant Director.
 ______________________ 
 
ROBERT HOOFMAN
v.
 ARMY 
 2
Before N
EWMAN
,
 
P
LAGER
,
 
and O'M
 ALLEY 
,
 
Circuit Judges.
 P
ER
C
URIAM
 Robert J. Hoofman
 pro se
petitions for review of thefinal decision of the Merit Systems Protection Board(MSPB or the Board) sustaining his removal for miscon-duct.
Hoofman v. Dep’t of Army
, SF-0752-11-0266-I-1(M.S.P.B. Sept. 18, 2012). Because the Board correctlysustained Mr. Hoofman’s removal, we
affirm
.B
 ACKGROUND
 Mr. Hoofman was a Construction Control Representa-tive with the U.S. Army Engineer District in Anchorage Alaska. Late one night, Mr. Hoofman was driving homein a government vehicle when, through a chain of eventsthat remains unclear, he stranded the vehicle on top of asand pile. He tried to free the vehicle from the sand pileby switching between forward and reverse gears but wasunsuccessful. The police arrived at the scene at around1:30 a.m. and observed the stranded vehicle, Mr. Hoof-man, and two other passengers inside the stranded vehi-cle. The police requested that Mr. Hoofman submit to achemical breath test but he refused. Mr. Hoofman nowadmits that he had been drinking prior to the policearriving.The next day Mr. Hoofman pled guilty to a charge of Refusal of Breath Test, which resulted in the Alaska courtrevoking his driver’s license, requiring him to use anignition interlock system and to spend time in jail. Thefollowing morning, Mr. Hoofman contacted his supervisorand requested two weeks of leave due to personal familyreasons. He did not tell his supervisor about strandingthe government vehicle or his arrest. Mr. Hoofman alsocontacted a colleague and requested that the colleagueretrieve the vehicle, which had been impounded, and nottell anyone. The police released Mr. Hoofman from jailapproximately 10 days later, at which time Mr. Hoofman
 
 
ROBERT HOOFMAN
v.
 ARMY 
 3
explained the incident to his supervisor. Shortly thereaf-ter, the Army proposed Mr. Hoofman’s removal based onfour charges: 1) driving a government vehicle while underthe influence of alcohol; 2) using a government passengervehicle for other than official purposes; 3) loss of hisdriver’s license for one year and having to use an ignitioninterlock device for one year after regaining his drivingprivileges; and 4) attempting to deceive his supervisor.Mr. Hoofman challenged his proposed removal, but hedid not entirely dispute what happened on the night inquestion; rather he argued that additional facts werenecessary to understand the context and sequence of theevents. Mr. Hoofman provided a signed memorandumoutlining his version of the story, a portion of which wequote below.Mr. Hoofman admits he was driving the Govern-ment truck and got it stuck, sometime around2300 hours. He states he was driving alone andhad not been drinking. When he could not get thevehicle unstuck, he walked to his apartment thatwas nearby. At the apartment, he admitted heconsumed alcohol. About 0100 hrs, walking backto the truck, he met 2 individuals nearby andasked for their assistance to get his truck unstuck;they agreed to help provided Mr. Hoofman provid-ed them a ride (somewhere) afterwards, Mr.Hoofman agreed. They could not get the vehicleunstuck. . . . He does not recall when the 2 indi-viduals got into the vehicle.Resp’t’s App. A43.The Army did not think that Mr. Hoofman’s explana-tion was credible and formalized his removal, which Mr.Hoofman appealed to the MSPB. The AdministrativeJudge issued an initial decision reversing the Army’sremoval decision for, amongst other reasons, relying upon

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