Opinion

Camilo Garcia v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CAMILO GARCIA, DOCKET NUMBER

Appellant, DA-0752-16-0324-I-1

DEPARTMENT OF HOMELAND DATE: January 22, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Malinda A. Gaul , Esquire, San Antonio, Texas, for the appellant.

Tania Bryant , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained his removal. 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 interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision AS

MODIFIED by this order to find that the agency proved one of two charges of

violation of agency policy, to clarify the standard applied to the appellant’s claim

that he was subjected to a disparate penalty in accordance with Singh v. U.S.

Postal Service, 2022 MSPB 15, and to consider the appellant’s argument of

condonation in determining whether the penalty of removal falls within the

tolerable limits of reasonableness, which is now the Board’s final decision.

5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant served as a Criminal Investigator with the agency’s Office of

Inspector General (OIG) in its McAllen, Texas field office. Initial Appeal File

(IAF), Tab 6 at 6. In May 2012, the agency placed the appellant on

administrative leave pending the outcome of a Federal Bureau of Investigation

(FBI) criminal investigation and a subsequent agency OIG investigation regarding

the falsification of records in preparation for a September 2011 internal

inspection of the McAllen field office. IAF, Tab 8 at 4, Tab 10 at 18-20. In

January 2016, the agency proposed the appellant’s removal based on the

following charges: (1) violation of agency policy, supported by eight

specifications of misconduct; (2) unauthorized use of a law enforcement database;

and (3) lack of candor, supported by four specifications of misconduct. IAF,

Tab 8 at 4-21. The appellant provided an oral and a written reply to the notice.

IAF, Tab 7 at 6-14. In April 2016, the agency issued a decision sustaining the

charges and removing the appellant, effective April 14, 2016. Id. at 4-5.

The appellant timely filed an appeal with the Board alleging that the

evidence did not support the charges against him, the penalty imposed was

excessive, and he was retaliated against for exercising his Fifth Amendment

rights. IAF, Tab 1 at 4. Following a hearing, the administrative judge issued an

initial decision sustaining the appellant’s removal. IAF, Tab 40, Initial Decision

(ID). The administrative judge found that, regarding the charge of violation of

agency policy, although the agency did not establish that the appellant failed to

submit eight memoranda of activity (MOA) as soon as practicable, the agency

nevertheless proved its charge because the appellant submitted signed and dated

MOA that did not accurately reflect the date they were completed, or did not

contain a date. ID at 5-8. The administrative judge also found that the agency

proved its charge of unauthorized use of a law enforcement database. ID at 9-15.

The administrative judge further found that the agency proved one specification

of the charge of lack of candor and sustained the charge. ID at 15-19. The

administrative judge then found that the agency established a nexus between the

appellant’s misconduct and the efficiency of the service. ID at 19. Finally, in

reviewing the penalty of removal, the administrative judge found that the

appellant did not show that the agency imposed a penalty upon him that was

inconsistent with the penalties imposed upon other employees for the same or

substantially similar offenses, or that the agency took the removal action in

retaliation for the exercise of his Fifth Amendment rights, and found the penalty

within the bounds of reasonableness; accordingly, he sustained the agency’s

action. ID at 19-26.

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

agency has filed a response opposing the petition. Petition for Review (PFR)

File, Tabs 1, 3. As set forth below, although we find that the charge of violation

of agency policy is properly split into two separate charges, the administrative

judge correctly sustained the second charge of violation of agency policy and

properly sustained the remaining two charges. The administrative judge also

properly found a nexus between the appellant’s misconduct and the efficiency of

the service. The administrative judge then correctly found that the appellant’s

misconduct was not similar to that of four other employees. Finally, despite the

administrative judge’s failure to consider the appellant’s argument that his

supervisors condoned his failure to accurately date the MOA as part of the

analysis of the penalty, we find that the penalty of removal falls within the

tolerable limits of reasonableness for the sustained charges.

DISCUSSION OF ARGUMENTS ON REVIEW

The charge of violation of agency policy is properly split into two separate

charges of violation of agency policy, and the administrative judge correctly

sustained the second charge of violation of agency policy.

On review, the appellant alleges that the administrative judge erred in

sustaining the charge of violation of agency policy because he found that the

agency failed to prove an essential element of the charge. PFR File, Tab 1 at 7-8.

The appellant further alleges that the administrative judge erred by sustaining the

charge on the basis that the appellant submitted MOA that reflected inaccurate

dates or failed to contain a date because these acts were not elements of the

charge or specifications. Id. at 8. Finally, the appellant alleges that the MOA

used to support the specifications were approved by his supervisors, backdating

MOA was a common practice, and it was not uncommon for employees to make

errors on MOA. Id. at 8-10.

The notice of proposed removal set forth the charge of violation of agency

policy and eight specifications, each of which alleged that the appellant had both

failed to timely submit a MOA and had failed to accurately date the MOA. IAF,

Tab 8 at 5-8. As the administrative judge found, the agency policy cited in the

notice, paragraph 12.4 of the Special Agent Handbook (SAH), provided that an

MOA must be “submitted to the reporting agent’s immediate supervisor for

approval within five working days of the activity, or in exceptional circumstances

as soon as practicable thereafter,” and that MOA must be signed and dated on the

date on which they are signed. ID at 5-8; see IAF, Tab 20 at 38-40. The

administrative judge found that, although the MOA at issue were not submitted

within 5 working days, the agency did not prove that the appellant failed to

submit MOA as soon as was practicable after the activity described in the MOA.

ID at 5-7. However, the administrative judge found that the agency demonstrated

that the appellant did not accurately date seven MOA and failed to date one MOA

in violation of agency policy. ID at 7-8.

The Board may not split a single charge into several independent charges

and then sustain one of the newly formulated charges, which represents only a

portion of the original charge. Burroughs v. Department of the Army, 918 F.2d

170, 172 (Fed. Cir. 1990). If the agency fails to prove one of the elements of its

charge, then the entire charge must fall. Id. However, when a single stated

charge contains two separate acts of misconduct that are not dependent upon each

other and that do not comprise a single, inseparable event, each act constitutes a

separate charge. Chauvin v. Department of the Navy, 38 F.3d 563, 565 (Fed. Cir.

1994). In resolving the issue of how a charge should be construed, the Board

examines the structure and language of the proposal notice and the decision

notice, as well as the accompanying specifications and circumstances. George v.

Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x 889

(Fed. Cir. 2008).

Here, although the administrative judge did not explicitly split the charge

of violation of agency policy into two charges, he properly identified two

violations of agency policy that comprised separate acts of misconduct. ID

at 5-8. The allegation that the appellant failed to submit MOA within 5 working

days of an activity, or as soon as is practicable thereafter, in violation of SAH

paragraph 12.4(B), is distinct from the allegation that he inaccurately dated MOA

in violation of SAH paragraph 12.4(C)(4)(a). IAF, Tab 20 at 38-40. In other

words, the appellant could have failed to timely submit MOA but still accurately

dated the MOA, or vice versa. Moreover, each specification set forth under the

charge of violation of agency policy contained the elements to potentially support

a violation of both agency policies at issue. IAF, Tab 8 at 5-8. Accordingly, we

find that the agency charged the appellant with two independent violations of

agency policy, which we consider as two separate charges of violation of agency

policy.

Neither the appellant nor the agency dispute the administrative judge’s

finding that the agency did not prove the first charge of violation of agency

policy because it did not show that the appellant failed to submit MOA as soon as

was practicable after the activity described in the MOA, and we discern no reason

to disturb the administrative judge’s findings, as the record reflects that he

considered the evidence as a whole, drew appropriate inferences from the

evidence, and made reasoned conclusions on the issue of credibility. ID at 5-7;

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 when 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).

We have found that the original charge of violation of agency policy must

be split into two charges. Next, we construe the appellant’s argument—that the

fact that he submitted MOA reflecting inaccurate dates or failing to contain a date

was not an element of the charge or specifications—to allege that he lacked

notice of the second charge of violation of agency policy. PFR File, Tab 1 at 8.

An employee must receive advanced written notice stating the specific reasons for

the proposed adverse action in sufficient detail to allow the employee to make an

informed reply. Smith v. Department of the Interior, 112 M.S.P.R. 173, ¶ 5

(2009); see 5 U.S.C. § 7513(b)(1); Cleveland Board of Education v. Loudermill,

470 U.S. 532, 546 (1985) (explaining that the essential requirements of

constitutional due process for a tenured public employee are notice of the charges

against him, with an explanation of the evidence, and an opportunity for the

employee to present his account of events prior to the deprivation of his property

right to continued employment). Here, the notice of proposed removal set forth a

narrative description following the charge of violation of agency policy that

alleged that the appellant’s MOA were “misdated to appear as though they had

been prepared and signed within the reporting period proscribed in the Special

Agent Handbook,” and each of the eight specifications set forth either that the

date the MOA was signed and dated by the appellant was not the date of signature

set forth in the MOA, or that the MOA lacked the date it was signed by the

appellant. IAF, Tab 8 at 5-8. Although the agency did not set forth in the notice

the language of the agency policy violated, it referred to paragraph 12.4 of the

SAH, which sets forth the policy at issue. Id.; see IAF, Tab 20 at 38-40.

Moreover, the appellant specifically responded to the agency’s allegations

that the dates of signature set forth in the MOA were not accurate in his reply to

the notice of proposed removal. IAF, Tab 7 at 7. When an appellant comes

forward and addresses a charge made against him, the Board cannot find that he

was not given notice of the charge. Yinat v. Department of the Army,

101 M.S.P.R. 328, ¶ 15 (2005). Thus, we find that the appellant received

sufficient notice of the second charge of violation of agency policy to make an

informed reply to the charge.

Finally, the appellant’s argument—that the administrative judge erred in

sustaining the second charge of violation of agency policy because the MOA used

to support the specifications were approved by his supervisors—is not a defense

to the charge, but it is relevant to whether the penalty of removal exceeded the

tolerable limits of reasonableness. PFR File, Tab 1 at 8-10; see Avant v.

Department of the Air Force, 71 M.S.P.R. 192, 201 (1996) (stating that the

appellant’s argument that his supervisor condoned his misconduct is not a defense

to the charge but is relevant to penalty), overruled on other grounds by White v.

U.S. Postal Service, 71 M.S.P.R. 521 (1996); see also Canada v. Department of

Homeland Security, 113 M.S.P.R. 509, ¶¶ 18-19 (2010) (explaining that the

appellants’ claim that their supervisors authorized or condoned their consumption

of alcohol in response to a charge of conduct unbecoming was relevant as a

possible mitigating factor to the penalty). Accordingly, we address this argument

below as to whether the administrative judge properly found that the agency’s

penalty fell within the tolerable limits of reasonableness.

The administrative judge did not err in sustaining the charge of unauthorized use

of a law enforcement database.

The appellant also argues that the administrative judge erred in finding the

appellant’s coworker more credible than the appellant and thus concluding that

the agency proved that the appellant engaged in the unauthorized use of a law

enforcement database. PFR File, Tab 1 at 10-12. It is undisputed that the

coworker searched for the appellant’s former wife’s paramour in two law

enforcement databases, and that this search was not conducted for an authorized

purpose. However, the appellant disputed the agency’s allegation that he induced

his coworker to search the database for the paramour by telling the coworker that

the search was for an individual that was bothering one of the appellant’s

confidential informants. IAF, Tab 8 at 9-10; PFR File, Tab 1 at 10-11.

The appellant alleges that inconsistencies in his coworker’s testimony

render his explanation of the events in question implausible; however, we have

reviewed the record and find the administrative judge’s credibility findings to be

supported by the record. PFR File, Tab 1 at 10-12. The Board must defer to an

administrative judge’s credibility determinations when they are based, explicitly

or implicitly, on observing 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) (quoting Haebe, 288 F.3d

at 1299). The administrative judge acknowledged that there was little physical

evidence to prove either the appellant’s or his coworker’s version of the events in

question and conducted a detailed assessment of the appellant’s and the

coworker’s testimony, ultimately finding the coworker’s version of the events

more credible than the appellant’s version. ID at 9-13. In particular, the

administrative judge found that the appellant’s testimony, in which he alleged

that his coworker volunteered to conduct the search after the appellant disclosed

his marital problems and that the search was not a serious act of misconduct

because he could gather information from publicly available sources, was less

plausible than the coworker’s testimony because he and the coworker were not

close friends, and he was on notice that his use of the databases was

unauthorized. ID at 10-13. Moreover, the administrative judge observed the

appellant’s testimony to be rehearsed and evasive, whereas the coworker’s

testimony was direct and detailed. ID at 12-13.

The appellant alleges that his coworker’s failure to tell the FBI about the

lunch he had with another special agent, during which he discovered that the

alleged confidential informant was the appellant’s former wife’s paramour, the

lack of evidence that the coworker reported the search to one of his supervisors,

and the coworker’s failure to log the search in an MOA render his testimony

implausible. PFR File, Tab 1 at 10-12. However, the special agent with which

the coworker had lunch corroborated that the lunch in question occurred. IAF,

Tab 39, Hearing Compact Disc (HCD) 3 (testimony of K.H.). The coworker also

explained that he would not have logged the search in an MOA because it did not

pertain to one of his investigations, and he did not recall whether he had logged

the search in his personal log. HCD 1 (testimony of M.R.). Finally, despite the

lack of corroborating evidence of the coworker’s testimony that he reported the

search to a supervisor, the appellant does not cite evidence contradicting his

coworker’s testimony, and there is no reason to discredit the testimony. We thus

find no reason to disturb the administrative judge’s findings regarding the

coworker’s credibility.

Finally, the appellant does not dispute the administrative judge’s findings

that he provided the information that initiated the coworker’s search for the

paramour, that the search was conducted solely for the appellant’s personal use,

and that the appellant received training on database use, which would have

included information that searching databases for personal use is prohibited. ID

at 13-15. Thus, regardless of whether the coworker knew that the search was for

the appellant’s personal use, the administrative judge properly found that the

agency proved that the appellant used the databases for an unauthorized purpose.

The penalty of removal is the maximum reasonable penalty for the sustained

charges.

On review, the appellant does not dispute the administrative judge’s

decision to sustain one specification of the lack of candor charge or the finding

that the agency proved a nexus between the appellant’s misconduct and the

efficiency of the service, and we see no reason to disturb the administrative

judge’s well-reasoned findings on these matters. 2 ID at 15-19; see Clay,

123 M.S.P.R. 245, ¶ 6.

The appellant argues, however, that the administrative judge erred in

sustaining the penalty of removal because he did not properly sustain the charge

of violation of agency policy and did not sustain several of the specifications of

the lack of candor charge. PFR File, Tab 1 at 12-13. As set forth above, we find

that the charge of violation of agency policy was comprised of violations of two

agency policies, properly constituting two separate charges, and that the agency

The agency has not challenged the administrative judge’s findings that did not sustain

portions of the agency’s charges. PFR File, Tab 1.

did not prove the first charge but proved the second charge of violation of agency

policy, as well as the charge of unauthorized use of a Government database and

one specification of lack of candor. Concerning the lack of candor charge, proof

of one specification is sufficient to prove the charge as a whole, thus the

administrative judge properly sustained the charge upon sustaining one

specification of the lack of candor charge. Burroughs, 918 F.2d at 172; Alvarado

v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 29 (2006), aff’d, 626 F. Supp.

2d. 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012).

When, as here, the agency proves fewer than all of its charges, the Board

may not independently determine a reasonable penalty. Lachance v. Devall,

178 F.3d 1246, 1259 (Fed. Cir. 1999); Gray v. Government Printing Office,

111 M.S.P.R. 184, ¶ 18 (2009). Rather, the Board may mitigate to the maximum

reasonable penalty so long as the agency has not indicated either in its final

decision or during proceedings before the Board that it desires that a lesser

penalty be imposed on fewer charges. Lachance, 178 F.3d at 1260; Gray,

111 M.S.P.R. 184, ¶ 18. Here, the deciding official testified that she would have

sustained the penalty of removal if she had sustained any one of the three original

charges. HCD 1 (testimony of the deciding official). As such, the Board may

impose the same penalty imposed by the agency based on a justification of that

penalty as the maximum reasonable penalty after balancing the mitigating factors.

Gray, 111 M.S.P.R. 184, ¶ 18. The Board’s function regarding its review of an

agency’s penalty selection is not to displace management’s responsibility, but to

determine whether management exercised its judgment within the tolerable limits

of reasonableness. Id. As set forth below, the appellant’s allegation that the

sustained charges do not support the penalty of removal is without merit.

The appellant has not shown that he was subjected to a disparate penalty.

On review, the appellant alleges that the administrative judge erred in

finding that three employees were not similarly situated to the appellant; he

contends that the three employees were placed on administrative leave for more

egregious violations of agency policy but were returned to work. PFR File, Tab 1

at 13-15. The appellant also appears to argue that the administrative judge

improperly evaluated certain Douglas factors in reference to the alleged

comparator employees. 3 Id. at 14-15. Although the administrative judge

acknowledged that the agency treated the appellant and the three alleged

comparators differently, he found that the misconduct was not comparable

because the other three employees were not charged with the same offenses as the

appellant. 4 ID at 23-24.

Among the factors an agency should consider in setting the penalty for

misconduct is the “consistency of the penalty with those imposed upon other

employees for the same or similar offenses.” Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981). In assessing the agency’s penalty

determination, the relevant inquiry is whether the agency knowingly and

unjustifiably treated employees differently. Singh, 2022 MSPB 15, ¶ 14; see

Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988)

(providing that a person does not have a legally protected interest in the evenness

of a misconduct penalty assessed on him compared to that assessed on others

unless employees are knowingly treated differently “in a way not justified by the

facts, and intentionally for reasons other than the efficiency of the service”). To

establish disparate penalties among employees, the appellant must show that “the

charges and the circumstances surrounding the charged behavior are substantially

similar.” Miskill v. Social Security Administration, 863 F.3d 1379, 1384 (Fed.

Cir. 2017). The universe of potential comparators will vary from case to case, but

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors to be considered when evaluating the penalty

to be imposed for an act of misconduct.

The administrative judge also considered whether M.R. was similarly situated to the

appellant but did not find that they engaged in similar misconduct, and the appellant

does not dispute this finding on review. ID at 23-24.

it should be limited to those employees whose misconduct or other circumstances

closely resemble those of the appellant. Singh, 2022 MSPB 15, ¶ 13.

Here, each of the three alleged comparators worked as criminal

investigators in the McAllen field office, and each alleged comparator was placed

on administrative leave pending the outcome of the investigation of the McAllen

field office, but none of the comparators were ultimately disciplined. IAF, Tab 8

at 17; Tab 32 at 113-21; HCD 2 (testimony of E.C., R.G., and R.V.). The

appellant alleged that the three employees engaged in similar misconduct to his

because they were placed on administrative leave for violating agency policy by

creating fraudulent MOA. PFR File, Tab 1 at 13-15. However, the administrative

judge properly found that the three employees did not engage in the same or

similar offenses as the appellant. ID at 23-24. Although the appellant and the

three comparator employees engaged in conduct that amounted to violations of

paragraph 12.4 of the SAH, none of the comparator employees also engaged in

the unauthorized use of a law enforcement database. HCD 2 (testimony of E.C.,

R.G., and R.V.). Moreover, there is no evidence that the comparator employees

lacked candor; to the contrary, the deciding official and the three comparator

employees testified that the comparator employees affirmatively notified agency

or FBI investigators of improper MOA preparation. HCD 1 (testimony of the

deciding official); HCD 2 (testimony of the deciding official, E.C., R.G., and

R.V.).

The appellant argues that Boucher v. U.S. Postal Service, 118 M.S.P.R. 640

(2012), supports his argument that the three employees are comparable even

though he engaged in more misconduct than the other three employees. PFR File,

Tab 1 at 13. However, the Board recently reexamined the disparate penalty

analysis in Boucher and its progeny and determined that the Board in Boucher did

not find that the comparator employees at issue had engaged in the same or

similar offenses as the appellant, as required by Douglas, 5 M.S.P.R. at 305.

Singh, 2022 MSPB 15, ¶ 17. The Board thus overruled Boucher to the extent that

it held that the disparate penalty analysis should extend beyond the same or

similar offenses. Id. Under Singh, the Board will not attempt to weigh the

relative seriousness of various offenses to determine whether two employees who

committed different acts of misconduct were treated disparately. Id. Rather, the

misconduct of similarly situated employees must closely resemble that of the

appellant. Id., ¶ 13. Here, the appellant’s unauthorized use of a Government

database and lack of candor rendered his misconduct incomparable to that of the

other three employees, who only arguably violated agency policy in their

preparation of MOA. ID at 23-24; see Singh, 2022 MSPB 15, ¶¶ 16-17

(concluding that Boucher did not find that the comparator had engaged in the

same or similar misconduct as the appellant when, among other factors, the

appellant was charged with possession of both marijuana and cocaine, but the

comparator was charged only with possession of marijuana and was not arrested

on or near agency property).

Moreover, the consistency of the penalty with those imposed upon other

employees for the same or similar offenses is simply one of a nonexhaustive list

of 12 factors that are relevant for consideration in determining the

appropriateness of a penalty. Singh, 2022 MSPB 15, ¶ 18. Our review of each of

the factors considered by the deciding official in determining that removal was

the appropriate penalty leads us to conclude that removal is the maximum

reasonable penalty to be imposed for the charges sustained.

The deciding official considered the relevant Douglas factors in sustaining the

penalty of removal.

The most important factor in assessing whether the agency’s chosen

penalty falls within the tolerable limits of reasonableness is the nature and

seriousness of the misconduct and its relation to the employee’s duties, position,

and responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14

(2010). As set forth in the administrative judge’s findings, the deciding official

testified that she considered the appellant’s misconduct very serious, particularly

because the appellant’s credibility was necessary to his position as a law

enforcement officer and a senior criminal investigator in the McAllen field office

who interacted with the public and other law enforcement agencies. HCD 1

(testimony of the deciding official). She also testified that she held the appellant

to a higher standard because he was a law enforcement officer and investigator

for the OIG, and thus he must be beyond reproach as a “guard of the guards.” Id.

The deciding official further testified that she was no longer confident in his

ability to prepare accurate information as a criminal investigator. Id.

The deciding official also found that the appellant could not be

rehabilitated because he made excuses for his behavior and downplayed the

seriousness of backdating MOA; moreover, he did not express remorse for his

actions. Id. She further testified that she considered that the appellant’s

misconduct reflected poorly on the reputation of the agency’s agents. Id. The

deciding official also testified that she considered the appellant’s lack of a past

disciplinary history, his years of service, his demanding position and challenging

workload, and his marital problems as mitigating factors, but she found that these

mitigating factors did not outweigh the seriousness of the offense and other

aggravating factors. Id.

In reviewing the penalty of removal, the administrative judge found the

deciding official’s testimony regarding her considerations credible and concurred

in her assessment of the Douglas factors. ID at 19-26. He also considered the

appellant’s argument that the agency’s decision to investigate and remove him

was in retaliation for declining to cooperate with the FBI investigation and the

exercise of his Fifth Amendment right not to testify before a grand jury

investigating the McAllen office, but the administrative judge found no evidence

of retaliation. ID at 24-25. On review, the appellant argues that the

administrative judge erred in finding no retaliation because, unlike the three other

employees he alleged committed similar misconduct, he did not falsify MOA and

thus did not have any evidence against his supervisors. PFR File, Tab 1 at 15-16.

The appellant’s argument is premised on the testimony of certain agency officials

that they believed the appellant to be withholding information regarding the

McAllen office investigation and that the proposing official considered that three

employees cooperated with the FBI investigation and testified against their

supervisor in determining the penalty to impose against other employees. IAF,

Tab 8 at 17; HCD 1 (testimony of the proposing official); HCD 2 (testimony of

D.G.); PFR File, Tab 1 at 15-16. Thus, the appellant’s argument is directed not at

retaliation for the exercise of a constitutional right but at the agency’s rejection of

the other employees as comparators because they were forthcoming about their

actions in connection with the events giving rise to the McAllen office

investigation, whereas the appellant was not forthcoming. As set forth above,

even if these three employees could be considered to have committed the same

misconduct as the appellant regarding the preparation of MOA, they cannot be

considered comparators because they did not commit the additional misconduct

that the appellant committed.

The administrative judge also considered the appellant’s argument that

backdating MOA was a common practice in the McAllen field office as part of his

analysis of the charge of violation of agency policy, but he did not examine the

appellant’s argument that his supervisors condoned the errors in the dates on

which he signed MOA as part of the penalty analysis. ID at 7-8. Although the

issue of whether the appellant’s supervisors condoned the errors in the dates the

appellant signed MOA by signing the MOA themselves could serve to mitigate

the penalty, it is not necessary to determine the extent to which it could serve as a

mitigating factor because we find that the penalty of removal falls within the

tolerable limits of reasonableness for the appellant’s other misconduct. See

Canada, 113 M.S.P.R. 509, ¶¶ 19-20. The deciding official considered the

appellant’s unauthorized access of a law enforcement database serious because it

could constitute criminal conduct, and she similarly considered his lack of candor

serious given that it reflected poorly on his credibility and ability to perform his

duties as a law enforcement officer. HCD 1 (testimony of the deciding official).

We find, as did the administrative judge, that it was appropriate for the deciding

official to hold a law enforcement officer to a higher standard of conduct,

particularly when the appellant’s misconduct implicated his honesty and integrity.

See Jones v. Department of Justice, 87 M.S.P.R. 91, ¶ 12 (2000) (finding that

despite his 25 years of Federal service, removal was a reasonable penalty for an

immigration inspector who provided false information). The appellant’s

misconduct was extremely serious, particularly for a law enforcement officer who

investigated other agency employees’ criminal misconduct. IAF, Tab 8 at 16-17.

We find that the deciding official considered the factors most relevant to the

penalty in this case and reasonably exercised her management discretion; thus,

the penalty of removal falls within the tolerable limits of reasonableness as to the

remaining two charges. We affirm the administrative judge’s initial decision

sustaining the appellant’s removal.

NOTICE OF APPEAL RIGHTS 5

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the