Filed: Apr. 15, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRADFERD C. BIDNICK, DOCKET NUMBER Appellant, AT-0752-14-0060-I-1 v. DEPARTMENT OF JUSTICE, DATE: April 15, 2015 Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Joseph E. Benitez, Coral Gables, Florida, for the appellant. Aditi Sehgal and Katherine Meng, Washington, D.C., 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 su
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRADFERD C. BIDNICK, DOCKET NUMBER Appellant, AT-0752-14-0060-I-1 v. DEPARTMENT OF JUSTICE, DATE: April 15, 2015 Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Joseph E. Benitez, Coral Gables, Florida, for the appellant. Aditi Sehgal and Katherine Meng, Washington, D.C., 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 sus..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADFERD C. BIDNICK, DOCKET NUMBER
Appellant, AT-0752-14-0060-I-1
v.
DEPARTMENT OF JUSTICE, DATE: April 15, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Joseph E. Benitez, Coral Gables, Florida, for the appellant.
Aditi Sehgal and Katherine Meng, Washington, D.C., 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
sustained his removal for misconduct. 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
¶2 On September 18, 2013, the agency appointed the appellant to the position
of GL-09 Criminal Investigator. 2 Initial Appeal File (IAF), Tab 6, Subtab 4c at
56. Upon his appointment, the appellant was enrolled in special agent training.
Id. at 58. As an enrollee, he was subject to the agency’s Special Agent Trainee
Honor Code (Honor Code). IAF, Tab 5 at 62, 66-67.
¶3 While the appellant was still in the training program, the agency proposed
his removal based on one charge of violating the Honor Code by cheating on a
written examination. 3 Id. at 56-59. Specifically, the agency alleged that on
March 26, 2013, the appellant was observed viewing another trainee’s
examination materials and marking his own answer sheet after viewing those
2
The appellant was previously a GS-13 Physical Security Specialist with the same
agency and transferred to the Criminal Investigator position without a break in service.
Initial Appeal File (IAF), Tab 6, Subtab 4c at 56. It is undisputed that he was an
“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) with Board appeal rights at the time of
his removal. IAF, Tab 5 at 5.
3
The Honor Code states that “special agent trainees, in performance of their official
duties, will not lie, cheat, steal or tolerate those who do. Any violation of the Honor
Code may result in termination from training.” IAF, Tab 5 at 66 (emphasis in the
original). The Honor Code provides a defin ition of “cheating,” and the appellant does
not dispute that his alleged actions, if proven, wou ld constitute cheating under that
defin ition. Id.
3
materials. Id. at 56. After receiving the appellant’s response to the proposal,
IAF, Tab 6, Subtab 4c at 4-55, the agency removed him effective September 4,
2013, IAF, Tab 5 at 22-28.
¶4 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at
22-23. He disputed the charge and the penalty, and he raised affirmative defenses
of harmful procedural error, violation of due process, and whistleblower reprisal. 4
IAF, Tab 20 at 1-6. After a hearing, the administrative judge issued an initial
decision affirming the removal and finding that the appellant failed to prove his
affirmative defenses. IAF, Tab 33, Initial Decision (ID).
¶5 The appellant has filed a petition for review, contesting the administrative
judge’s findings on the charge, the penalty, and his harmful error and due process
affirmative defenses. Petition for Review (PFR) File, Tab 4. The agency has
filed a response. PFR File, Tab 6.
The agency proved its charge by preponderant evidence.
¶6 Regarding the charge itself, the appellant argues that the agency’s evidence
was insufficient to prove that he copied the other trainee’s work as alleged. PFR
File, Tab 4 at 16-20, 28. Briefly, the agency’s evidence in support of its charge
was from three sources: (1) the observations of the Basic Training Programs
Branch Chief, who sat in the front of the classroom during the examination,
(2) the observations of the Staff Administrator, who sat in the back of the
classroom during the examination, and (3) the appellant’s and the other trainee’s
4
At the prehearing conference, the administrative judge declined to accept the
appellant’s whistleblower defense for adjudication because he failed to describe the
nature of his two disclosures, and the timing of one disclosure was such that it could not
have been a contributing factor in the removal. IAF, Tab 20 at 6-7. The appellant
objected to the administrative judge’s ruling and belated ly filed further evidence and
argument on the issue. IAF, Tab 27 at 5-7, Tab 29 at 11-13. The administrative judge
noted that the appellant’s submission was untimely, but she nevertheless adjudicated the
whistleblower defense and found that, assuming the appellant made a protected
disclosure, it was not a contributing factor in his removal. IAF, Tab 33, Initial Decision
at 16. The appellant does not challenge the administrative judge’s finding regarding
this claim, and we discern no reason to disturb it.
4
multiple choice answer sheets, which showed some similarities to one another.
IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g; Hearing Transcript, Volume I (HT I) at
77 (testimony of the Staff Administrator), 129 (testimony of the Branch Chief).
Specifically, the Branch Chief testified that, during the course of the 20- to
25-minute examination, he observed the appellant put his right elbow on his desk,
lean his head into his hand, and glance to the left at another trainee’s test
materials approximately twenty times. HT I at 138-41. He further testified that,
on two occasions, he saw the appellant look at the other trainee’s materials and
immediately mark his own answer sheet. Id. at 141-42. The Staff Administrator
testified that she observed the appellant rest his elbow on his desk, his head in his
hand, and glance three or four times to his left at the other trainee’s examination
materials. Id. at 83-89. As for the answer sheets, out of fifty questions, the
appellant and the other trainee answered the same three incorrectly. IAF, Tab 5
at 75; HT I at 90 (testimony of the Staff Administrator). Of those three, the
appellant and the other trainee supplied the same incorrect answer for two of
them. IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g. There were fifteen trainees taking
the examination that day, IAF, Tab 1 at 75; HT I at 114 (testimony of the Staff
Administrator), and the examination took place in what could be fairly
characterized as a typical classroom setting, with three rows of eight desks and
chairs, IAF, Tab 6, Subtab 4c at 134, 136, Tab 14 at 94-100. The appellant sat in
the front row. IAF, Tab 6, Subtab 4c at 134; HT I at 22 (testimony of the
appellant), 135 (testimony of the Branch Chief).
¶7 The appellant testified that he took an unusual posture during the
examination in order to relieve pain from a leg injury—not to look at the other
trainee’s answer sheet. PFR File, Tab 4 at 28; HT I at 29-32, 42-43 (testimony of
the appellant). The administrative judge did not find the appellant’s testimony
persuasive for two reasons. First, she found that the appellant’s injury was not
severe enough to cause him to be unable to sit still during a 20-minute
5
examination. ID at 7. Second, she found that the appellant failed to raise this
issue in response to the notice of proposed removal. ID at 7-8.
¶8 On review, the appellant argues that the administrative judge’s opinion of
the severity of his injury was not grounded in reliable, objective medical
evidence. PFR File, Tab 4 at 28. He argues that the administrative judge denied
his request to call his doctor as a witness and that he did not object because the
administrative judge advised him that she would allow him to submit a letter from
his doctor in lieu of testimony. Id.; IAF, Tab 19, Witness List at 2, Tab 20 at 8,
Tab 29 at 16; HT I at 4-5 (statement of the administrative judge). He further
argues that he would have objected to this witness ruling had he known that the
administrative judge would be so dismissive of the evidence proffered in lieu of
the doctor’s testimony. PFR File, Tab 4 at 28.
¶9 As an initial matter, we find that the appellant did not avail himself of the
administrative judge’s invitation to submit a note from his doctor reflecting what
the doctor’s testimony would have been. Rather, he relied on medical evidence
that was already in the record and showed generally that the appellant was
experiencing discomfort from his injury, but did not specifically address the
appellant’s ability to sit still during the examination at issue. IAF, Tab 17,
Subtabs F, R, S, Tab 29 at 16-17, 20. In fact, the only medical evidence about the
injury’s effect on the appellant’s ability to sit is a December 2, 2013 doctor’s note
stating that “[t]he patient is sitting comfortably in the examination room . . . .”
IAF, Tab 17, Subtab S at 4. Furthermore, we agree with the administrative judge
that the appellant’s failure to raise this important issue with the deciding official
casts doubt on the veracity of his claim. ID at 7-8. While the Board will consider
an appellant’s evidence and arguments regardless of whether he raised them
before the agency, see Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 610-11
(1991) (rejecting the notion that the Board’s scope of review is limited to
consideration of the administrative record established before the agency); Stewart
v. Office of Personnel Management, 8 M.S.P.R. 289, 293 (1981) (concluding that
6
the Board is both authorized and mandated to consider de novo all available
relevant evidence), the Board may find them less credible when he raises them for
the first time before the Board, see, e.g., Reynolds v. Department of Justice,
63 M.S.P.R. 189, 195 (1994). For these reasons, we find no basis to disturb the
administrative judge’s denial of the appellant’s doctor as a witness or her finding
that the appellant’s injury did not cause him to have to turn during the
examination.
¶10 The appellant also argues that the Branch Chief and the Staff Administrator
did not give credible testimony of what they observed during the examination.
Regarding the Branch Chief, the appellant argues that he has “credibility and
integrity issues,” as evidenced by his past disciplinary record, including
discipline for failure to report an “incident” to his supervisor in 1998 and for
misuse of a government computer in 2002 or 2003. PFR File, Tab 4 at 18, 29.
The appellant’s attorney attempted to question the Branch Chief about these
matters at the hearing, but the administrative judge sustained the agency’s
objection to that line of questioning. Id. at 29; HT I at 165-66. The appellant
argues that the administrative judge should have allowed testimony on these
issues. PFR File, Tab 4 at 29.
¶11 However, not all misconduct that an individual might commit has a bearing
on his propensity for telling the truth. Cf. Eichner v. U.S. Postal Service,
83 M.S.P.R. 202, ¶ 10 (1999) (because the appellant’s prior misconduct of
disrupting operations, distracting employees, and disobeying orders did not
involve his propensity for telling the truth, the administrative judge should not
have considered it in determining the credibility of the appellant’s testimony). It
is not apparent to us, and the appellant has not alleged, that the Branch Chief’s
prior misconduct, which occurred approximately 10 to 15 years before the
hearing, involved any sort of falsification or element of deception. Under these
circumstances, we find that the administrative judge did not abuse her discretion
in sustaining the agency’s objection to this line of questioning. See Sanders v.
7
Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (an administrative
judge has wide discretion to control the proceedings, including the authority to
exclude testimony that she believes would be irrelevant, immaterial, or unduly
repetitious); 5 C.F.R. § 1201.41(b)(3). Moreover, the appellant has not explained
on petition for review what testimony he expected to elicit from the Branch Chief
concerning that prior misconduct. Therefore, he has not shown that the
administrative judge’s ruling prejudiced his substantive rights. See Walton v.
Tennessee Valley Authority, 48 M.S.P.R. 462, 467 (1991); Karapinka v.
Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s
procedural error is of no legal consequence unless it is shown to have adversely
affected a party’s substantive rights).
¶12 The appellant further argues that the Branch Chief’s testimony was not
persuasive because he could not recall where the appellant’s and the other
trainee’s test booklets were positioned on the desk or in which hand they held
their pencils. PFR File, Tab 4 at 19; HT I at 190, 195 (testimony of the Branch
Chief). In addition, the Branch Chief did not observe what the appellant was
marking on his answer sheet. PFR File, Tab 4 at 19; HT I at 141 (testimony of
the Branch Chief). We have considered these matters in evaluating the overall
evidence regarding the charge, but we do not find it surprising that the Branch
Chief was either unable to observe or unable to remember these details. We find
that his failure to do so does not detract significantly from the persuasiveness o f
his testimony.
¶13 Regarding the Staff Administrator, the appellant argues that her own
testimony shows that she did not see him cheat. PFR File, Tab 4 at 16, 29. In
support of his argument, he cites the Staff Administrator’s hearing testimony as
well as her contemporaneous written account of her observations. Id. at 16-17;
IAF, Tab 5 at 73; HT I at 72-99. It appears that the appellant’s point is that the
Staff Administrator did not see him mark his answer sheet after looking at the
other trainee’s papers. PFR File, Tab 4 at 16-17. We agree with this assessment
8
and we have considered it as part of our overall evaluation of the evidence.
However, we think that it is an overstatement to say that the Staff Administrator
testified that she did not see the appellant cheat. Although the Staff
Administrator may not have observed the appellant mark his answer sheet after
looking at the other trainee’s papers, she did observe the appellant looking at the
other trainee’s papers, and this led her to believe that the appellant was cheating.
HT I at 86-89 (testimony of the Staff Administrator); IAF, Tab 5 at 73.
¶14 The appellant further argues that the Branch Chief’s testimony and
contemporaneous written statement contradict those of the Staff Administrator.
PFR File, Tab 4 at 8, 19. Specifically, the Branch Chief stated that he saw the
appellant cheat by looking at the other trainee’s answer sheet and marking his
own, whereas the Staff Administrator stated that she did not see the appellant
mark his answer sheet and did not see him cheat. Id.; IAF, Tab 5 at 71, 73; HT I
at 99 (testimony of the Staff Administrator), 153-54 (testimony of the Branch
Chief). Again, the appellant mischaracterizes the Staff Administrator’s
testimony. The Staff Administrator stated that she believed that she observed the
appellant cheating, HT I at 86-89 (testimony of the Staff Administrator); IAF,
Tab 5 at 73, and we do not think that her failure to observe him marking his
answer sheet equates to a nonobservance of cheating. In any event, we find that
the statements of these two witnesses are not contradictory. Rather, they are
consistent with one another. The Branch Chief merely observed details that the
Staff Administrator did not, which is understandable, considering that he had a
better vantage point to observe the appellant’s behavior during the examination,
being seated closer to and facing him.
¶15 The appellant also argues that some of the language that the Branch Chief
and Staff Administrator used in their testimony and written statements undercuts
the conclusion that the appellant cheated on the examination. Specifically, he
argues that the Branch Chief and the Staff Administrator stated that they observed
the appellant “glance” at the other trainee’s paper and that a mere glance is not a
9
violation of the agency’s cheating policy. PFR File, Tab 4 at 15, 18; IAF, Tab 5
at 73; HT I at 84, 86 (testimony of the Staff Administrator), 138-41, 154, 157
(testimony of the Branch Chief). He further argues that the Branch Chief and the
Staff Administrator stated that the appellant “appeared” to be cheating, which is
not the language that someone would use if he were convinced of what he saw.
PFR File, Tab 4 at 19-20; IAF, Tab 5 at 73; HT I at 88 (testimony of the Staff
Administrator). We are not persuaded by the appellant’s argument. Although a
“glance” at another trainee’s materials may not be the same thing as cheating,
twenty such “glances” during the course of a 20- or 25-minute examination is
strongly indicative of cheating. As for the use of the word “appears,” we do not
find this to be particularly significant.
¶16 Finally, the appellant notes that, for one of the questions that he and the
other trainee missed, they supplied different answers. PFR File, Tab 4 at 19; IAF,
Tab 5 at 75, Tab 6, Subtabs 4f-4g. We acknowledge that the appellant and the
other trainee did not answer every question identically, and we have considered
this fact in evaluating the evidence overall. They did, however, answer 49 of the
50 questions identically, and the one that they did not answer identically, they
both got wrong. Although the similarities between the answer sheets alone might
not have been enough to prove that the appellant cheated, for the reasons
explained in the initial decision, we agree with the administrative judge that the
totality of the evidence, including the answer sheets and the testimony and
contemporaneous written accounts of the Branch Chief and the Staff
Administrator, were sufficient to show by preponderant evidence that the
appellant cheated on the examination, thereby violating the Honor Code. ID at
5-8.
The removal penalty promotes the efficiency of the service.
¶17 Where, as here, the agency’s charge is sustained, the Board will modify an
agency-imposed penalty only when it finds that the deciding official failed to
weigh the relevant penalty factors, or the penalty imposed exceeds the tolerable
10
limits of reasonableness. Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15
(2000); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Among
the factors that the Board will consider are the nature and seriousness of the
offense, and its relation to the employee’s duties, position, and responsibilities,
the clarity with which the employee was on notice of any rules that were violated
in committing the offense, or had been warned about the conduct in question, the
employee’s potential for rehabilitation, and other mitigating circumstances that
may have been present and contributed to the misconduct. Douglas, 5 M.S.P.R.
at 305-06. The appellant challenges the penalty determination as follows.
¶18 First, he argues that he was not on sufficient notice of what the agency’s
Honor Code requires because the agency “compelled [his] signature through
direct orders.” PFR File, Tab 4 at 8, 26. He argues that the manner in which the
agency secured his signature to the Honor Code was improper, he was never
asked whether he had any questions about it, and he “should have been properly
informed with sufficient opportunity . . . to have read understood and exercised
[his] freedom of choice to be bound by such regulation.” 5 Id. at 9-13
(punctuation as in the original). We find, however, that the appellant was put on
fair notice of the Honor Code and its requirements. On his first day of training,
the appellant received a copy of the Honor Code, was told to read it, and had it
explained to him. HT I at 17-18 (testimony of the appellant), 55 (testimony of the
Program Manager). The agency also includes, as the first page of every written
examination, a statement reminding special agent trainees of the Honor Code and
its prohibition on cheating. Id. at 56-57 (testimony of the Program
5
The appellant contends that if the Board were to uphold the agency’s use of its Honor
Code, this would have far reaching implications across the civil service. PFR File, Tab
1 at 14. He urges the Board to issue a Federal Register notice afford ing the Office of
Personnel Management (OPM) and any interested persons an opportunity to brief the
issue before the Board renders a decision. Id. at 13-14. We disagree that our findings
on this issue represent a shift in the law or otherwise have the potential for broad
impact on the civil service, and we decline the appellant’s suggestion to call for am icus
briefs or to seek an advisory opinion from OPM.
11
Administrator); IAF, Tab 5 at 69, 94-99. The appellant received and signed this
statement on each of the seven examinations that he took, including the
examination in question. IAF, Tab 5 at 69, 95-99; HT I at 55-56 (testimony of
the Program Manager). Furthermore, we have reviewed the Honor Code, and we
find nothing confusing about it. IAF, Tab 5 at 66-67. Nor has the appellant
explained what exactly about the Honor Code he finds unclear. In an y event,
even in the absence of a cheating prohibition spelled out in the Honor Code, the
appellant has a graduate level education and we do not believe that he fails to
understand the gravity of cheating on an examination. IAF, Tab 17, Subtab D.
Moreover, cheating on an examination is contrary to 5 C.F.R. § 735.203, which
applies to the civil service generally, and provides that an employee shall not
engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful
conduct, or other conduct prejudicial to the Government. Lawley v. Department
of the Treasury, 84 M.S.P.R. 253, ¶ 18 (1999).
¶19 Second, the appellant argues that the deciding official failed to consider his
injury as a mitigating factor. PFR File, Tab 4 at 27. However, the appellant has
not established a causal connection between his injury and the misconduct that
would give us a basis to consider this as a mitigating factor. See Brown v. U.S.
Postal Service, 64 M.S.P.R. 425, 434 (1994).
¶20 Third, the appellant argues that the deciding official failed to consider his
potential for rehabilitation. PFR File, Tab 4 at 27. We agree with the appellant
that the deciding official testified that he did not consider the appellant’s
potential for rehabilitation. HT I at 296-97. It appears that the deciding official
found that the appellant’s potential for rehabilitation was not especially relevant
because, throughout his entire career, the offense would be subject to disclosure
under Giglio v. United States, 405 U.S. 150 (1972). HT I at 296-97.
Nevertheless, the deciding official also testified that he considered the evidence
that the appellant identified as indicative of his rehabilitative potential, including
his work history and letters of reference. Hearing Transcript, Volume II (HT II)
12
at 26-27. The overall tenor of the deciding official’s testimony is that he found
the appellant’s rehabilitative potential to be immaterial in light of the seriousness
of the charge and the appellant’s compromised utility as a law enforcement
officer. HT I at 296-97; HT II at 26-27. Therefore, notwithstanding the portions
of the deciding official’s testimony that the appellant identifies on petition for
review, our review of the deciding official’s testimony as a whole leads us to
agree with the administrative judge that the deciding official considered and
responsibly weighed the pertinent penalty factors. ID at 9-10.
¶21 Regarding the nature and seriousness of the offense and its relation to the
appellant’s duties, position, and responsibilities, the Board has long held that
offenses touching on honesty and integrity are especially serious when it comes to
law enforcement officers, who are held to a higher standard of conduct to begin
with. E.g., Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 16 (2003),
aff’d, 131 F. App’x 709 (Fed. Cir. 2005); Childs v. U.S. Postal Service,
67 M.S.P.R. 348, 356 (1995); Austin v. Department of Justice, 11 M.S.P.R. 255,
259 (1982). The Board places primary importance on this penalty factor. Jones
v. Department of the Interior, 97 M.S.P.R. 282, ¶ 13 (2004). For the reasons
explained in the initial decision, we agree with the administrative judge that the
removal penalty does not exceed the tolerable limits of reasonableness, and that it
promotes the efficiency of the service. ID at 10.
The appellant has not shown that the agency committed harmful procedural error.
¶22 To prove that the agency committed harmful procedural error under
5 U.S.C. § 7701(c)(2)(A), the appellant must show both that the agency
committed procedural error and that the error was harmful. Parker v. Defense
Logistics Agency, 1 M.S.P.R. 505, 513 (1980). He must prove that any
procedural errors by the agency prejudiced his substantive rights by possibly
affecting the agency’s decision; harmful error cannot be presumed. Stephen v.
Department of the Air Force, 47 M.S.P.R. 672, 681 (1991).
13
¶23 The appellant argues that the agency failed to launch an adequate and
competent investigation by the Office of Internal Affairs “pursuant to standing
Agency policy, directives and manual orders” and that this resulted in the
removal decision being based on “speculation and conjecture.” PFR File, Tab 4
at 1. The administrative judge addressed this argument at length below, and he
found that the agency committed no procedural error and that the appellant failed
to show that the investigation that he desired might have changed the outcome of
the case. ID at 12-14. There is no apparent error in the administrative judge’s
analysis and we find that the appellant’s argument constitutes mere disagreement
with it. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)
(mere disagreement with the administrative judge’s findings and credibility
determinations does not warrant full review of the record by the Board).
¶24 The appellant also argues that the agency had no procedures to deal with
allegations of cheating but instead, in violation of Bureau of Alcohol, Tobacco,
Firearms and Explosives Manual Order 2140.1, created an ad hoc procedure to
address his particular situation. PFR File, Tab 4 at 21; IAF, Tab 17, Subtab W.
However, we are aware of no law, rule, or regulation, requiring agencies to have a
separate established protocol for addressing every conceivable category of
misconduct. Nor has the appellant explained what these alleged ad hoc
procedures were or how they were inconsistent with the procedures in Manual
Order 2140.1 or any other statutory or regulatory procedures generally applicable
to addressing employee misconduct. Therefore, the appellant has not shown that
the agency committed any procedural error in this regard or that any such
procedural error was harmful. See Helms v. Department of the Army,
114 M.S.P.R. 447, ¶ 7 (2010).
The appellant has not shown that the agency violated his due process rights.
¶25 An agency’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his employment
14
constitutes an abridgement of his constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985).
¶26 On review, the appellant argues that the deciding official was aware of the
appellant’s case before it came to him in his capacity as deciding official and that
he was already predisposed to decide against the appellant. PFR File, Tab 4 at
22. However, it is well-established that a deciding official’s awareness of
background information concerning the appellant, his concurrence in the
desirably to take an adverse action, or his predisposition to impose a severe
penalty does not disqualify him from serving as a deciding official on due process
grounds. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 7-8
(2012). There is no general proscription of the appointment as a deciding official
of a person who is familiar with the facts of the case and who has expressed a
predisposition contrary to the appellant’s interests. Svejda v. Department of the
Interior, 7 M.S.P.R. 108, 111 (1981).
¶27 The appellant also argues that the deciding official considered “facts not in
evidence” in reaching his decision. PFR File, Tab 4 at 23-25, 30. We have
reviewed the appellant’s argument and it appears that he is not alleging that the
deciding official considered any ex parte communications or evidence to which
the appellant was not privy. Rather, he disagrees with the deciding official’s
characterization of that evidence at the hearing. Id. at 23-25. We find that the
appellant has not established a violation of his due process rights.
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.
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
15
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
