Daniel L. Emmerich v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL L. EMMERICH, DOCKET NUMBER

Appellant, DA-0752-14-0124-I-2

v.

DEPARTMENT OF JUSTICE, DATE: January 23, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald H. Tonkin, Esquire, Houston, Texas, for the appellant.

Aditi Sehgal, and Katherine Meng, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained the appellant’s removal. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the erroneous application of the law to the facts of the case; the 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, 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. Except as

expressly MODIFIED by this Final Order, we AFFIRM the initial decision.

¶2 The agency removed the appellant from his position as a Criminal

Investigator in the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),

based on charges of lack of candor (two specifications) and failure to follow

procedures (four specifications). 2 MSPB Docket No. DA-0752-14-0124-I-1,

Initial Appeal File (IAF), Tab 12 at 37-43. The charges concerned the appellant’s

participation in the investigation of a suspected narcotics transaction involving a

confidential informant and 300 pounds of marijuana outside of ATF jurisdiction.

Id. The appellant appealed his removal, and the administrative judge found that

the agency proved all specifications of the charges by preponderant evidence, and

2

The agency identified the following two specifications in support of the lack of candor

charge: (1) on or about February 13, 2013, the appellant was less than truthful to

internal affairs investigators when he advised his superior about a meeting with a

confidential informant; and (2) the appellant misled his supervisor regarding his

planned activities with the confidential informant on November 20, 2012. IAF, Tab 12

at 83. The agency identified the following four specifications in support of the failure

to follow procedures charge: (1) the appellant failed to follow procedures by not

reporting a threat to a confidential informant; (2) he failed to follow procedures by not

reporting a threat made against him and his family; (3) he failed to follow procedures

by not having an approved operational plan when he became involved in a suspected

narcotics transaction; and (4) he failed to follow procedures by not having approval

from the Division Director prior to conducting an investigation that was outside of, but

related to, ATF jurisdiction. Id. at 84.

3

that the removal penalty was reasonable. 3 IAF, Tab 1; MSPB Docket No. DA-

0752-14-0124-I-2, Refiled Appeal File (RAF), Tab 8, Initial Decision (ID). The

appellant filed a petition for review challenging the administrative judge’s

decision to sustain the charges and affirm the agency’s removal decision. Petition

for Review (PFR), Tab 1. The agency filed a response in opposition to the

appellant’s petition for review. 4 PFR File, Tab 3.

The appellant failed to prove that the administrative judge erred in affirming the

lack of candor charge.

¶3 In his petition for review, the appellant argues that the administrative judge

should have dismissed the charges. PFR File, Tab 1 at 5, 10. Regarding the lack

of candor charge, the appellant argues that the administrative judge

misinterpreted the facts underlying the charge and sustained the charge based on

an irrelevant discrepancy concerning the exact date on which he informed his

supervisor about his plans with a confidential informant. Id. at 4-5. The

appellant further argues that “[t]here is no deception alleged in the charge or in

evidence regarding when the conversations took place.” Id. at 4.

¶4 The contours and elements of a lack of candor charge depend upon the

particular context and conduct involved. See Ludlum v. Department of Justice,

278 F.3d 1280, 1284 (Fed. Cir. 2002). Lack of candor “may involve a failure to

disclose something that, in the circumstances, should have been disclosed in order

to make the given statement accurate and complete.” Id. “Although lack of

candor necessarily involves an element of deception, ‘intent to deceive’ is not a

separate element of that offense—as it is for ‘falsification.’” Id. at 1284-85.

3

The administrative judge dismissed the appellant’s initial appeal without prejudice and

the appellant subsequently refiled his appeal. Emmerich v. Department of Justice,

MSPB Docket No. DA-0752-14-0124-I-1, IAF, Tab 25, Initial Decision; MSPB Docket

No. DA-0752-14-0124-I-2, Refiled Appeal File (RAF), Tab 1.

4

The appellant filed an additional pleading on October 30, 2014, which the Board

rejected because the Board’s regulations do not allow it and because he did not request

leave from the Clerk of the Board by filing a motion describing the nature and need for

the additional pleading. PFR File, Tab 4; see 5 C.F.R. § 1201.114 (a)(5).

4

¶5 Upon reviewing the context and conduct underlying the agency’s lack of

candor charge, as set forth in the agency’s proposal and decision notices, we

disagree with the appellant’s argument that the administrative judge

misinterpreted the facts underlying the charge. The administrative judge did not

sustain the lack of candor charge based on an irrelevant date discrepancy; rather,

he sustained the charge because he found that the agency proved the merits of the

charge by preponderant evidence. Specifically, the administrative judge found

that the appellant made an inaccurate statement to internal affairs investigators

when he swore that, on November 20, 2012, he notified his supervisor that he was

going to meet with a Mission Police Department Narcotics Officer and let his

confidential informant pass along information regarding a stash house. ID at 12.

The administrative judge also found that the appellant misled his supervisor about

his planned activities with his confidential informant on November 20, 2012. ID

at 12-13.

¶6 Moreover, in reaching his decision, the administrative judge found that the

appellant’s testimony was less credible than the testimony of his supervisor and

another special agent on these issues. See ID at 12 (citing Hillen v. Department

of the Army, 35 M.S.P.R. 453, 458-62 (1987)). 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; the Board may overturn such determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). The credibility determinations of an

administrative judge are virtually unreviewable on appeal. See, e.g., Thomas v.

U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011). Although the appellant

attempts to deflect attention away from the administrative judge’s well-reasoned

findings and demeanor-based credibility determinations, the appellant does not

provide a sufficiently sound reason to disturb the administrative judge’s finding

5

that the agency proved the lack of candor charge by preponderant evidence. ID

at 2-3.

The appellant failed to prove that the administrative judge erred in affirming the

failure to follow procedures charge.

¶7 Regarding the failure to follow procedures charge, the appellant appears to

argue that he did not follow the procedures identified by the agency because those

procedures were inapplicable based on his version of the actions that gave rise to

the agency’s charge. PFR File, Tab 1 at 5-6. However, the appellant’s argument

on review amounts to mere disagreement with the findings of the administrative

judge regarding the merits of the proven charge. See ID at 13-15. The

administrative judge sustained this charge based, in part, on the appellant’s

testimony admitting that he failed to follow procedures when he did not report

threats to his confidential informant, himself, and his family. ID at 13.

¶8 The administrative judge also found that the appellant violated agency

procedures based on undisputed evidence that the appellant did not have an

operational plan for engaging in a narcotics transaction and he did not seek or

obtain verbal or written approval to conduct an investigation regarding

300 pounds of marijuana. ID at 14. The administrative judge found that ATF

Order 3210.1B required the preparation of an operational plan for, among other

things, an undercover meeting and also found that the appellant’s testimony that

he was not engaged in any undercover work was not credible. ID at 14. The

administrative judge further found that, under ATF Order 3210.7C, the appellant

required approval from the senior agent in charge to conduct the drug

investigation because drugs are not under the jurisdiction of the ATF. ID at 14.

We discern no reason to reweigh the evidence or substitute our assessment of the

record evidence for that of the administrative judge. 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 the administrative judge considered the

evidence as a whole, drew appropriate inferences, and made reasoned

6

conclusions); see also Broughton v. Department of Health & Human Services,

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

¶9 On review, the appellant also reasserts his argument that the administrative

judge should have merged certain specifications within both charges. PFR File,

Tab 1 at 4-5; IAF, Tab 22 at 2. However, the merger issue was not included

among the issues in dispute identified in the administrative judge’s prehearing

conference summary, and the administrative judge expressly warned the parties

that additional issues were precluded in the appeal. IAF, Tab 23 at 1. Although

the administrative judge advised the parties to express any disagreement with the

summary by filing an objection or a motion to supplement the summary by a

specific deadline, the appellant did not object to the exclusion of the merger issue

from the summary. See id. at 2. Accordingly, the Board will not consider the

merger issue because it is not properly before the Board. See Crowe v. Small

Business Administration, 53 M.S.P.R. 631, 634-35 (1992).

The appellant failed to prove that the agency committed harmful error and

violated his due process rights.

¶10 On review, the appellant argues that the administrative judge ignored his

argument that the deciding official’s failure to recuse himself constituted harmful

error because he was also the deciding official in a prior disciplinary action

against the appellant. PFR File, Tab 1 at 7. The administrative judge’s failure to

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

reaching her decision. See 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).

¶11 Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an agency’s

decision to impose an adverse action if the employee can show “harmful error in

the application of the agency’s procedures in arriving at such decision.” Doe v.

Department of Justice, 121 M.S.P.R. 596, ¶ 14 (2014). In the prehearing

conference summary, the administrative judge ordered the appellant to submit

specific evidence and argument to support his affirmative defense of harmful

7

error, including a copy of the rule or regulation that allegedly prohibited the

deciding official from serving in two disciplinary matters. IAF, Tab 23 at 2. The

administrative judge also informed the appellant that his affirmative defense

would be waived if he failed to submit the required information. Id.

¶12 The appellant did not provide the required information to the administrative

judge, and on review the appellant has not identified any agency rule or

regulation that the agency violated by allowing the deciding official to serve in

two disciplinary matters. 5 Moreover, the appellant submits no new evidence or

argument proving that the deciding official’s failure to recuse himself was in any

way improper or constituted error. We therefore find that the appellant failed to

prove his claim of harmful error and he has not shown that the administrative

judge’s failure to address this claim in the initial decision prejudiced his

substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (an adjudicatory error that is not prejudicial to a party’s substantive

rights provides no basis for reversal of an initial decision).

¶13 On review, the appellant also argues that there is a due process issue

because “[t]here is an unresolved issue of fact . . . as to whether the Deciding

Official actually relied upon Appellant’s past [discipline] in rendering his penalty

analysis prior to rendering his decision.” PFR File, Tab 1 at 7. Procedural due

process guarantees are not met if the employee has notice of only certain charges

or portions of the evidence and the deciding official considers new and material

information; therefore, it is constitutionally impermissible to allow a deciding

official to receive additional material that may undermine the objectivity required

5

On appeal, the appellant informed the administrative judge that he could not provide

the requested information because he had no access to the agency’s regulations. IAF,

Tab 24. However, the administrative judge in her acknowledgment order properly

informed the appellant and his attorney of the available discovery procedures, and the

appellant could have attempted to obtain the required information through discovery.

IAF, Tab 2 at 2-4. Thus, the appellant may not now claim harm by the agency’s failure

to assist voluntarily in his proceedings before the Board. See Kinsey v. U.S. Postal

Service, 12 M.S.P.R. 503, 505-06 (1982).

8

to protect the fairness of the process. Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999); see Ward v. U.S. Postal

Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011) (remanding the case for the Board

to consider whether the agency’s procedural error, in considering the appellant’s

alleged prior instances of misconduct without including these incidents in the

notice of proposed removal, constituted harmful error). In this case, however, the

appellant has not shown that the deciding official violated his due process rights

by relying on constitutionally-impermissible information.

¶14 The agency’s notice of proposed removal specifically informed the

appellant that the agency considered his 40-day suspension in October 2012,

which occurred approximately 30 days before the misconduct referenced in the

proposed removal notice, and his 2011 letter of reprimand. IAF, Tab 12 at 87.

The appellant has not identified any impermissible information considered by the

administrative judge that was not included in the notice of proposed removal.

PFR File, Tab 12 at 41, 87. He merely argues that the deciding official was

aware of his prior discipline “since he was the Deciding Official on [the

appellant’s] prior disciplinary matter.” PFR File, Tab 1 at 7.

¶15 To establish a due process violation based on the identity of the deciding

official, the appellant must make “specific allegations indicating that the agency’s

choice of the deciding official made the risk of unfairness to the appellant

‘intolerably high.’” Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 9

(2013). The appellant has not met that burden here. The mere fact that the same

deciding official presided over both of the appellant’s disciplinary actions and is

familiar with his background and prior conduct does not violate his due process

rights. See id. We therefore find that the appellant has not established that the

deciding official violated his due process rights based on his mere knowledge of

the appellant’s prior misconduct.

9

The appellant failed to prove that the removal penalty was unreasonable.

¶16 On review, the appellant argues that the administrative judge ignored the

evidence he submitted proving that the agency gave similarly-situated employees

lesser penalties and that the removal penalty was unreasonable. PFR File, Tab 1

at 7-9. The administrative judge did not discuss the appellant’s disparate penalty

argument in the initial decision. We therefore MODIFY the initial decision to

address this issue and find that the appellant has not met his burden concerning

his disparate penalty claim.

¶17 Where, as here, all of the agency’s charges are sustained, the agency’s

penalty determination is entitled to deference and should be reviewed only to

determine whether it is within the parameters of reasonableness. See Payne v.

U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). The appellant’s allegation that

the agency treated him disparately to another employee, without a claim of

prohibited discrimination, is an allegation of disparate penalties to be proven by

the appellant and considered by the Board in determining the reasonableness of

the penalty. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5

(2010); see also Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981). The appellant has the initial burden of showing that there is enough

similarity between both the nature of the misconduct and other factors to lead a

reasonable person to conclude that the agency treated similarly-situated

employees differently. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 20,

24 (2012). If he does so, the agency must prove a legitimate reason for the

difference in treatment by a preponderance of the evidence before the penalty can

be upheld. Id.

¶18 On review, the appellant alleges that four similarly-situated employees

received lesser discipline for charges that included lack of candor and

10

falsification. 6 PFR File, Tab 1 at 7-9. However, of the four employees identified

by the appellant as receiving lesser discipline for any of the charges underlying

his removal, the agency did not sustain those charges against three of those

employees. 7 IAF, Tab 21 at 17. Moreover, although the agency sustained a lack

of candor charge against one of those employees and suspended her, she did not

hold a position in the same job series as the appellant. See PFR File, Tab 1 at 8;

see also IAF, Tab 21 at 16 (disciplinary history of employee M.V.). This

distinction is significant because the appellant was a special agent in the 1811 job

series, which had Giglio implications that the deciding official considered in

making his removal decision. PFR File, Tab 3 at 8; IAF, Tab 12 at 41-42; see

Giglio v. United States, 405 U.S. 150 (1972) (requiring prosecutors to provide

defendants with information that may be used to impeach a witness’s character or

credibility). Citing Giglio, the deciding official determined that the appellant’s

lack of candor compromised his ability to meet his responsibilities as a federal

law enforcement officer because he might be subject to impeachment if he were

to testify in any federal prosecution. IAF, Tab 12 at 41-42. We therefore find

that the appellant has not met his initial burden to show that there is enough

similarity between both the nature of the misconduct and other factors to lead a

reasonable person to conclude that the agency treated similarly-situated

employees differently. See Boucher, 118 M.S.P.R. 640, ¶¶ 20, 24.

¶19 The appellant also argues that the removal penalty was unreasonable and

the administrative judge’s decision to sustain his removal was arbitrary and

capricious. PFR File, Tab 1 at 9. However, the agency’s Guide for Offenses and

Penalties states that the penalty for the first lack of candor offense ranges from

reprimand to removal. IAF, Tab 12 at 119. We therefore find that removal is

within the range of reasonable penalties for the appellant’s proven misconduct,

6

The comparators identified by the appellant will be referred to by their initials, C.K.,

G.O., S.S., and M.V. PFR File, Tab 1 at 8.

7

See IAF, Tab 21 at 17 (disciplinary history of employees S.S., C.K., and G.O.).

11

and we find no reason to disturb the initial decision affirming his removal. See

Carlton v. Department of Justice, 95 M.S.P.R. 633, ¶ 8 (2004) (finding that the

removal penalty was reasonable for the appellant’s lack of candor, which could be

used against him if he was called to testify in his capacity as a law enforcement

officer). 8

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. 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

8

On November 24, 2014, the appellant filed a motion to supplement the record to

address the Federal Circuit’s October 21, 2014 decision in Wrocklage v. Department of

Homeland Security, 769 F.3d 1363 (Fed. Cir. 2014). We deny the appellant’s motion.

However, we have reviewed the court’s decision in Wrocklage and find that it is not

dispositive in this case. Specifically, the Federal Circuit’s decision in Wrocklage did

not alter the legal standard applicable to a lack of candor charge; rather, it found that

the agency did not meet its burden of proving its lack of candor charge under the

specific factual circumstances in that case. Wrocklage, 769 F.3d at 1369-70. The facts

in this case differ significantly from those presented in Wrocklage. The lack of candor

charge in Wrocklage concerned the appellant’s statements regarding his alleged

possession of a Treasury Enforcement Communication System report and his alleged

unauthorized transmission of the report to an employee in Senator Carl Levin’s office.

Id. In finding that the agency failed to prove this charge, the court cited the appellant’s

explanation of his statements and his consistent, unrebutted testimony in support of his

statements. Id. at 1370. The concerns raised by the court in Wrocklage are not present

in this case. Significantly, as noted by the administrative judge, the appellant’s

explanation for his alleged lack of candor in this case is rebutted by record evidence,

including another employee’s declaration given under oath and text messages

documenting the appellant’s communications. ID at 2-13.

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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.

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 a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. 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.