Opinion

Larry Johnson v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Feb 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

noting that prejudice may arise due to the loss of records, destruction of evidence, fading memories, or unavailability of witnesses

How later courts described this case

noting that prejudice may arise due to the loss of records, destruction of evidence, fading memories, or unavailability of witnesses

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LARRY JOHNSON, DOCKET NUMBER

Appellant, PH-0752-19-0109-I-1

SOCIAL SECURITY DATE: February 20, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brien P. Connolly , Esquire, Danielle Gifford , Esquire, and Peter H. Noone ,

Esquire, Belmont, Massachusetts, for the appellant.

Amanda R. Stogsdill , Kristen Fredricks , and Michelle M. Murray,

Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review and the appellant has filed a

cross petition for review of the initial decision, which mitigated the appellant’s

removal to a 30-day suspension. For the reasons discussed below, we GRANT

the agency’s petition for review, VACATE the administrative judge’s findings

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

concerning the penalty and FIND that removal is the maximum reasonable

penalty. We further DENY the appellant’s cross petition for review and AFFIRM

the initial decision as MODIFIED concerning charges 1-3.

BACKGROUND

The appellant was formerly employed as a GS-15 Supervisory Special

Agent in Charge in the agency’s Office of the Inspector General (OIG), Policy

and Analysis Division in Baltimore, Maryland. Initial Appeal File (IAF), Tab 31

at 11. On October 15, 2018, the agency proposed his removal based on seven

charges: (1) unauthorized queries of social security records; (2) improper access

to social security records due to failure to obtain proper documentation;

(3) unauthorized disclosure of social security records; (4) lack of candor;

(5) failure to submit honest and complete financial disclosure forms; (6) misuse

of official position; and (7) inappropriate conduct. IAF, Tab 21 at 39-49. By

letter dated December 7, 2018, the agency sustained all of the charges and

specifications and removed the appellant, effective December 8, 2018. Id.

at 50-56.

The appellant filed a Board appeal challenging his removal and raised

affirmative defenses of reprisal for engaging in protected activity and

discrimination based on his race and color. IAF, Tab 1 at 9-10. After holding the

appellant’s requested hearing, the administrative judge issued an initial decision,

sustaining five of the seven charges and mitigating the penalty to a 30-day

suspension. IAF, Tab 40, Initial Decision (ID). In particular, the administrative

judge sustained charges 1-3 and 6-7. Although he sustained charges 1-3, the

administrative judge did not sustain the majority of the specifications because he

found that they took place 4 to 7 years ago when the appellant was in a different

non-management position and that it was therefore inequitable to punish the

appellant for such misconduct. ID at 11-13. Regarding charge six, the

administrative judge sustained one of the two specifications in which he found

that the appellant solicited donations from his subordinate employees for his

nonprofit organization. ID at 18. Regarding charge seven, he sustained two of

the three specifications in which he found that the appellant sent OIG documents

to his wife to obtain her assistance with performing his official duties and, during

fiscal years 2012 through 2017, he spent a considerable amount of official duty

time per week working on business for his nonprofit organization. ID at 17-19.

Finally, the administrative judge found that the agency failed to prove its charges

of lack of candor or failure to submit honest and complete confidential financial

disclosure forms. ID at 14-17. Regarding the appellant’s affirmative defenses,

the administrative judge found that the appellant’s alleged protected activity in

challenging the agency’s purported racist hiring practices never occurred because

he never sent the email or gave the speech. ID at 20-21. He further found that

the appellant failed to prove his claim of discrimination based on his race or

color. ID at 21-22.

The agency has filed a petition for review, disputing the administrative

judge’s finding that a 30-day suspension is the maximum reasonable penalty for

the sustained charges and asserting that the administrative judge improperly

dismissed the earlier specifications in support of charges 1-3. Petition for Review

(PFR) File, Tab 1. The appellant has opposed the agency’s petition and filed a

cross petition for review and the agency has filed a reply to the appellant’s

opposition and a response to the appellant’s cross petition for review. PFR File,

Tabs 4, 7, 9.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency has complied with the interim relief order.

The appellant has filed a pleading challenging the agency’s certification of

compliance with the interim relief order and requesting that the Board order the

agency to comply. PFR File, Tab 5. The Board’s regulations do not provide for

petitions for enforcement of interim relief orders; such petitions apply only to

final Board decisions. 5 C.F.R. § 1201.182(a). The Board’s regulations,

however, do allow an appellant to challenge an agency’s certification that it has

provided interim relief, and the Board may dismiss a petition for review if it finds

the agency to be in noncompliance with its interim relief obligations. 5 C.F.R.

§ 1201.116(b), (e).

Here, as part of the interim relief order in the initial decision, the

administrative judge ordered the agency to effect the appellant’s appointment to

his position as a GS-15 Special Agent in Charge and to provide him with pay and

benefits of the position as of the date of the initial decision. ID at 25-26. The

appellant contends that the agency has not complied with this order because,

although it restored him to his former title and grade, he does not have the same

duties, responsibilities, or supervisory authority. PFR File, Tab 5 at 5. In

particular, he asserts that he is not permitted to telework, has no supervisory

authority, has been assigned special projects, and the agency has not restored his

law enforcement authority, weapon, credentials, or systems access. Id. However,

the Board’s authority to review compliance with an interim relief order does not

extend to reviewing whether an appellant has been given appropriate duties or

work assignments. See Cook v. Department of the Army, 105 M.S.P.R. 178, ¶ 7

(2007). In any event, we find that the agency has provided a compelling reason

for returning the appellant to work under restricted job duties. See, e.g., Purzycki

v. General Services Administration, 81 M.S.P.R. 188, ¶ 9 (1999) (noting that,

although an employee should generally be reinstated to the position from which

he was separated, an agency should be found in compliance with an interim relief

order if it can show that it had a compelling reason for assigning duties other than

those assigned prior to an appellant’s separation). According to the agency, the

appellant’s position requires a top secret security clearance and the appellant was

required to undergo a periodic re-investigation as of April 2019. PFR File, Tab 8

at 5-6. See Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 4 n.2

(2004) (finding that the agency established a compelling reason for not assigning

the appellant flight-line duties where it had withdrawn the appellant’s flight-line

badge when it removed him from Federal service).

The administrative judge erred in applying the doctrine of laches regarding

charges 1 - 3.

In charge 1, the agency alleged that the appellant made unauthorized

queries of Social Security Administration (SSA) records on 27 occasions between

January 11, 2012, and November 29, 2017. IAF, Tab 21 at 39-41. In charge 2,

the agency alleged that the appellant improperly accessed SSA records without

obtaining proper documentation to support the query on three occasions on

December 21, 2011, and once on May 3, 2018. Id. at 41. In charge 3, the agency

alleged that for each of the specifications underlying charges 1 and 2, excluding

charge 2, specification 1, the appellant made unauthorized disclosures of SSA

records to law enforcement and non-law enforcement entities. Id. at 41-42. The

administrative judge found that the agency proved that the appellant made

unauthorized queries and disclosures of social security records in 2017 and 2018.

ID at 12. However, the administrative judge found that the alleged queries and

disclosures made between 2011 to 2014 were barred by the equitable defense of

laches. ID at 12-13. On review, the agency asserts that such a finding was

erroneous because the appellant failed to establish an unreasonable delay or

prejudice. PFR File, Tab 1 at 17-18. As set forth below, we agree.

The equitable defense of laches bars an action when an unreasonable delay

in bringing the action has prejudiced the party against whom the action is taken.

See, e.g., Social Security Administration v. Carr, 78 M.S.P.R. 313, 330 (1998),

aff’d, 185 F.3d 1318 (Fed. Cir. 1999). The party asserting laches must prove both

unreasonable delay and prejudice. Id.; see Nuss v. Office of Personnel

Management, 974 F.2d 1316, 1318 (Fed. Cir. 1992); Hoover v. Department of the

Navy, 957 F.2d 861, 863 (Fed. Cir. 1992); Pepper v. United States, 794 F.2d

1571, 1573 (Fed. Cir. 1986). Here, the administrative judge merely found that it

would be inequitable to punish the appellant based upon misconduct that took

place significantly earlier in his career. ID at 13. However, he made no finding

that the appellant was prejudiced by any delay on behalf of the agency in bringing

the charges or that any such delay was unreasonable. To the contrary, we find

that the appellant has not shown that he was prejudiced by any delay given his

testimony that he was able to discern who he ran queries for regarding each of the

specifications. Hearing Transcript (HT) at 228-29. Further, the record reflects

that the agency obtained statements from many of the individuals for whom the

appellant ran the queries. See, e.g., Cornetta v. United States, 851 F.2d 1372,

1378 (Fed. Cir. 1988) (noting that prejudice may arise due to the loss of records,

destruction of evidence, fading memories, or unavailability of witnesses).

Moreover, delay alone does not constitute laches, rather, the delay must be

unreasonable and unexcused. Id. at 1377-78. In light of our finding that the

appellant failed to establish prejudice, we need not decide whether any delay by

the agency was unreasonable and unexcused. Finally, to the extent the appellant

argues that he was prejudiced because agency management condoned and

encouraged his behavior, PFR File, Tab 4 at 9, such an argument is properly

considered as a possible mitigating factor in the penalty analysis, Canada v.

Department of Homeland Security, 113 M.S.P.R. 509, ¶¶ 18-19 (2010).

The agency proved charge 1: Unauthorized Queries of Social Security Records. 2

In charge 1, the agency alleged that the appellant made numerous

unauthorized queries of social security records between 2012 and 2017. IAF,

Tab 21 at 39-41. The appellant does not dispute that he queried the SSA records

system at the request of bank investigators. HT at 227-29, 262, IAF, Tab 18

at 50-54. Under the agency’s policy, OIG agents are permitted to access and

disclose SSA records only in very limited circumstances. IAF, Tab 26 at 63-68.

This includes verifying for Federal, State, or local law enforcement officials

whether a name and social security number match pursuant to a proper request.

Neither party disputes the administrative judge’s findings that the agency proved

charges 6 and 7, but failed to prove charges 4 and 5 and, thus, we do not address them.

Id. at 65. There is, however, no provision under the agency’s policy that

permitted the appellant to query or disclose SSA information to bank

investigators.

The appellant testified at the hearing that he believed his actions were

permitted because he was encouraged to form relationships with bank

investigators and that was something agents did. HT at 241. Such an argument,

however, goes to the weight of the penalty. Regardless, during his interview with

the agency’s Office of Quality Assurance and Professional Responsibility, the

appellant acknowledged that he was aware of the agency policy prohibiting the

query and dissemination of social security information to non-law enforcement

individuals. IAF, Tab 21 at 80, Tab 23 at 7, 12. Similarly, during his oral

response, he confirmed that he “knew that he was violating SSA OIG policy by

providing information to bank investigators.” IAF, Tab 26 at 5. Further, the

record reflects that the appellant annually acknowledged the agency’s policy for

systems access and table of penalties for violations. IAF, Tab 26 at 26-27, 55-60,

63-68, HT at 89 (testimony of the proposing official), 3 Tab 21 at 82-83, Tab 31

at 5-8. Accordingly, specifications 1-27 are sustained.

The agency proved charge 2: Improper Access of Social Security Records.

In charge 2, the agency alleged that the appellant improperly accessed SSA

records because he failed to obtain proper documentation for four different

queries he made of the SSA database on two separate dates. IAF, Tab 21 at 41.

The administrative judge found that the agency proved specification 1, which

alleged that on May 3, 2018, the appellant queried the SSA database and obtained

information pertaining to a person with a social security number ending in the

Although the agency’s policy concerning systems access violations is dated

February 2019, IAF, Tab 26 at 26, the proposing official testified that the same

information concerning system access penalties was contained in the prior versions of

the agency’s policy from 2010 to 2019, HT at 89. Such testimony does not appear to be

disputed.

specified four digits without obtaining proper documentation to support the

query. ID at 12; IAF, Tab 21 at 41.

On cross petition for review, the appellant argues that the administrative

judge erred in finding that the agency proved specification 1 because, although

the appellant accessed the record, the agency failed to provide any evidence that

his access was unauthorized. PFR File, Tab 4 at 29. Such an argument is

unavailing. The appellant admits that, after receiving a telephone call from a

special agent, he queried the system and provided match/no match 4 information to

the agent. IAF, Tab 1 at 36. However, under agency policy, the appellant could

disclose to Federal, state, and local law enforcement officials whether a given

name and social security number matched only if specific procedures were

followed, including, among other things, a request was made in writing on

official letterhead, signed by a supervisory law enforcement official, sent via mail

or facsimile, and included the name and social security number to be reviewed.

IAF, Tab 26 at 65; HT at 97. Additionally, each special agent in charge is

required to keep a master file of all requests and responses for social security

number verification for annual reporting purposes. Id. at 68; HT at 142. Thus,

contrary to the appellant’s argument, the absence of documentation supports the

agency’s contention that the appellant’s access was unauthorized due to failure to

obtain proper documentation. Therefore, the administrative judge properly

sustained specification 1.

The administrative judge did not address the merits of specifications 2 -4 of

charge 2 because, as discussed above, he improperly found that they were barred

by laches. Addressing the merits now, we find that the agency proved these

specifications by preponderant evidence. The appellant admits that he accessed

the SSA database and searched for the relevant social security information that

was requested by A.W., an intelligence analyst at the Florida Department of

Providing match/no match information means stating whether a given name and social

security number matched. ID at 11 n.7.

Lottery, on behalf of a law enforcement agent. HT at 369 (testimony of the

appellant); IAF, Tab 18 at 49, 56, Tab 31 at 91. Although the appellant contends

that the email contained an attachment with a case report that he believed would

be sufficient to document the request, HT at 261; IAF, Tab 18 at 56, there is no

evidence that such a request was made in writing on official letterhead, signed by

a supervisory law enforcement official, and sent via mail or facsimile, as required

by agency policy, IAF, Tab 26 at 65. Accordingly, specifications 2-4 are

sustained.

The agency proved charge 3: Unauthorized Disclosure of Social Security

Records.

In charge 3, the agency alleged that for each of the unauthorized queries

made in charges 1 and 2 (excluding charge 2, specification 1) the appellant also

made unauthorized disclosures of SSA information to both law enforcement and

non-law enforcement individuals. IAF, Tab 21 at 41-42. The administrative

judge found that the agency proved specifications 1 and 2, which pertain to

unauthorized disclosures of social security information the appellant made to

bank investigators in 2017. ID at 11-12. The administrative judge found that the

appellant generally conceded the access and disclosures, citing to the hearing

compact discs, the appellant’s written response to the proposal notice, and a

written summary of the appellant’s oral reply to the deciding official. ID at 11.

On cross petition for review, the appellant argues that the administrative

judge erred in sustaining specification 1 because the appellant testified that he did

not make any disclosure to T.B., an investigator for Regions Bank, as alleged and

the agency offered no evidence to establish that such a disclosure occurred. PFR

File, Tab 4 at 29. We need not decide whether the administrative judge erred in

sustaining specification 1 because, as discussed below, the remaining sustained

charges and specifications are sufficient to warrant removal. See Alaniz v. U.S.

Postal Service, 100 M.S.P.R. 105, ¶ 10 (2005); see also Luciano v. Department of

the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001) (finding that the Board need not

address allegations of error concerning certain specifications of a charge because

the sustained charges and specifications warranted the appellant’s removal), aff’d,

30 F. App’x 973 (Fed. Cir. 2002). 5

In specifications 2-27, the agency alleged that on various dates the

appellant disclosed SSA record information to a non-law enforcement entity

without authorization. IAF, Tab 21 at 39-42. The appellant does not dispute that

he accessed and provided the information alleged in such specifications. IAF,

Tab 18 at 50-54. He further concedes that the individuals to whom he provided

the information were not law enforcement officials. Id. at 54; HT at 343.

Accordingly, such disclosures were prohibited under agency policy, and we

sustain specifications 2-27. HT at 96-98; IAF, Tab 26 at 65-68.

In specification 28, the agency alleged that on December 21, 2011, the

appellant disclosed information relating to three social security records to a law

enforcement entity without proper documentation or authorization. IAF, Tab 21

at 41-42. The appellant does not dispute that he provided the information to

A.W., who similarly confirmed that the appellant verified the social security

numbers for her. IAF, Tab 30 at 54, Tab 18 at 55-56. As discussed above under

charge 2, specifications 2-4, such a request was not accompanied by proper

documentation as required by agency policy. IAF, Tab 26 at 65-68. Accordingly,

the agency proved that the appellant’s disclosures were unauthorized, and we

sustain specification 28.

The administrative judge erred in mitigating the penalty to a 30-day suspension.

When an agency proves fewer than all of its charges, the Board may

mitigate the agency’s selected penalty to the maximum reasonable penalty, so

long as the agency has not indicated that it desires a lesser penalty to be imposed

on fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

In light of our finding, we deny the appellant’s motion for leave to file a reply to

address the agency’s arguments in its response to the appellant’s cross petition for

review concerning specification 1 of charge 3. PFR File, Tab 10.

Alternatively, the Board may impose the penalty selected by the agency if, after

balancing the mitigating and aggravating factors, it determines that the agency

has justified its penalty selection as the maximum reasonable penalty. Gray v.

U.S. Postal Service, 97 M.S.P.R. 617, ¶ 11 (2004), aff’d, No. 2005-3074,

2005 WL 1368093 (Fed. Cir. June 9, 2005). However, the Board may not

disconnect its penalty determination from the agency’s managerial will and

primary discretion in disciplining employees. Lachance, 178 F.3d at 1258.

The Board has articulated factors to be considered in determining the

propriety of a penalty, such as the nature and seriousness of the offense, the

employee’s past disciplinary record, the supervisor’s confidence in the

employee’s ability to perform his assigned duties, the consistency of the penalty

with the agency’s table of penalties, and the consistency of the penalty with those

imposed on other employees for the same or similar offenses. Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). The Board places

primary importance upon the nature and seriousness of the offense and its relation

to the appellant’s duties, position, and responsibilities. See, e.g., Downey v.

Department of Veterans Affairs, 119 M.S.P.R. 302, ¶ 9 (2013).

Considering the factors set forth in Douglas, particularly the nature and

seriousness of the offense and the appellant’s status as a supervisory law

enforcement officer, and keeping in mind the employing agency’s primary

discretion in assessing penalties, we find that removal does not exceed the

tolerable limits of reasonableness for the sustained misconduct. See, e.g.,

Voorhis v. Department of Homeland Security, 116 M.S.P.R. 538, ¶¶ 4, 9-12,

31-32 (2011) (finding that removal of a Senior Special Agent was a reasonable

penalty for his misconduct in making unauthorized queries and disclosures related

to immigration records, misusing his position, and engaging in a lack of candor),

aff’d, 474 F. App’x 778 (Fed. Cir. 2012). In so finding, we have also considered

the appellant’s 14 years of Federal service, as well as his positive performance

and accolades, and lack of any prior disciplinary actions.

Regarding the nature and seriousness of the offense, the appellant accessed

and disclosed SSA information to non-law enforcement bank investigators, which

was unauthorized and not related to his job duties. He did so, despite annually

acknowledging that he had read and understood the agency’s systems access

policies, which set forth the narrow circumstances under which an agent could

disclose SSA information. Such policies specifically stated “ [d]o not access SSA

records and/or release any SSA information unless you are absolutely certain

that you are legally authorized to do so,” and they set forth the minimum required

administrative penalties for systems access offenses and that such offenses could

lead to criminal penalties. IAF, Tab 26 at 54-60, 63-68 (emphasis in original).

Moreover, the appellant’s actions were intentional to the extent that he admitted

that he knew that he was violating agency policy by providing information to

bank investigators. Id. at 5; IAF, Tab 23 at 24-25. Additionally, regarding the

inappropriate conduct charge, the administrative judge found that the appellant

spent “considerable” work time on matters related to his nonprofit each week

during fiscal years 2012-2017. ID at 19. The Board has held that an employee

who conducts personal business while he is presumed to be performing the

official duties of his position violates the trust the agency has placed in him and

destroys the confidence established in the employer -employee relationship. See

Cohen v. Internal Revenue Service, 7 M.S.P.R. 57, 61 (1981) (affirming a

removal action for conducting personal business on Government time,

notwithstanding the appellant’s 13 years of service, unblemished record, and

absence of progressive discipline).

As the administrative judge correctly found, the deciding official

considered charges 1-3 to be the most serious and testified that each on their own

would support removal. HT at 209. She further testified that regardless of the

date the misconduct occurred, under the agency’s policy, one category C violation

is an automatic 14-day suspension and a second violation would warrant removal.

HT at 213. On review, the agency asserts that, in mitigating the penalty, the

administrative judge erred in finding that the appellant had only one offense

because “offense” refers to a violation of the systems access rules, not an effected

disciplinary action based on such a violation. PFR File, Tab 1 at 12. We agree. 6

To the extent the appellant accessed and disclosed SSA information that was

unauthorized on more than two occasions, removal was appropriate under the

agency’s guidelines. IAF, Tab 26 at 57 (stating that removal is the minimum

penalty for a second offense for a category C violation, improper access and

disclosure of information to someone not entitled to the information).

The appellant contends that his access and disclosure of SSA information

to bank investigators was condoned by agency management who encouraged

agents to foster relationships with such bank investigators. HT at 231. In support

of his argument, he presented the testimony of two retired special agents, G.F.

and M.M-J. Although the Board considers condonation as a potential mitigating

factor in the penalty analysis, see Canada, 113 M.S.P.R. 509, ¶¶ 18-19, the record

does not reflect that either individual was aware of and condoned the appellant’s

specific misconduct. In particular, G.F. testified that there was a distinction

between agents providing indirect 7 versus direct information to bank investigators

and that he did not see a problem with agents providing indirect information to

get around strict disclosure rules. HT at 387-89, 391-93. In contrast, he testified

that disclosing match/no match information “is really very different” because it is

a direct disclosure that agents could make to law enforcement agents. HT at 391.

We also agree with the agency that the administrative judge erred in characterizing the

deciding official’s testimony as stating that she “strongly considered a suspension.”

PFR File, Tab 1 at 6-7; ID at 23; HT at 207-08.

As an example of an indirect disclosure, G.F. testified that a bank investigator might

contact an OIG agent about a bank record that looks suspicious and inform the agent

that the individual might be a deceased beneficiary. HT at 387-89. The agent may go

into the system to see if that person is deceased, but when he talks to the bank

investigator, he does not directly tell him whether the person is dead or alive. Id.

Instead, the agent might say, “that is not something we would be interested in opening a

case on, that person is probably having a latte at Starbucks.” Id. Through that indirect

information, the bank investigator could infer that the person is alive. Id.

He also testified that the agents under him were familiar with not being able to

provide direct information from the SSA database to bank investigators because it

was not worth getting in trouble. HT at 393. In contrast, M.M-J. testified that it

was common practice in the Atlanta Field Division for field agents to run

match/no match queries for bank investigators and that it was considered to be

within agency practice. HT at 412. Such testimony, however, was conclusory,

and M.M-J. was not asked to explain when it was common practice, how she

knew that it was common practice, or to describe whether the manner in which

agents provided such information comported with the appellant’s actions at issue.

HT at 410. Thus, we find that M.M’s conclusory testimony alone does not

warrant mitigation of the penalty. See, e.g., Herrera-Martinez v. Social Security

Administration, 84 M.S.P.R. 426, ¶ 16 (1999) (noting that, although condonation

may be a mitigating factor, the Board has not always found that condonation

warrants mitigation).

Finally, although the administrative judge found that the deciding official

failed to properly consider the fact that the appellant was not a supervisor when

he committed some of the conduct underlying charges 1-3, ID at 23 n.12, the

appellant was at all times a law enforcement officer whom the agency was

entitled to hold to a higher standard of conduct, see, e.g., Cantu v. Department of

the Treasury, 88 M.S.P.R. 253, 257 (2001) (stating that a higher standard of

conduct and degree of trust are required of an incumbent of a position with law

enforcement duties); Fischer v. Department of the Treasury, 69 M.S.P.R. 614,

619 (1996) (noting that supervisors and law enforcement officials are held to a

higher standard of conduct than other employees).

Accordingly, we find that removal is the maximum reasonable penalty for

the sustained misconduct.

NOTICE OF APPEAL RIGHTS 8

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

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:

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

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

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

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/CourtWebcites.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. 9 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).

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