Opinion

Samuel Gannelli v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SAMUEL GANNELLI, DOCKET NUMBER

Appellant, AT-0752-22-0454-I-1

DEPARTMENT OF JUSTICE, DATE: April 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.

Clairanne Wise , Esquire, and Luke Archer , Springfield, Virginia, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

mitigated the appellant’s removal to a letter of reprimand. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the law to the facts of the case; the 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. Except as

expressly MODIFIED to supplement the administrative judge’s analysis of the

lack of candor charge and her penalty analysis, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was a GS-1811-13 Criminal Investigator (Special Agent) for

the agency’s Drug Enforcement Administration (DEA), assigned to the West Palm

Beach District Office in Florida. Initial Appeal File (IAF), Tab 1 at 1, Tab 4

at 19. On or around July 2020, the appellant was selected for reassignment to the

Mazatlan, Mexico office, which is part of the North and Central American Region

that was then-headed by Senior Executive Service (SES) Regional Director (RD),

N. Palmeri. Hearing Transcript (HT) at 240 (testimony of N. Palmeri), 264

(testimony of the appellant). The appellant began attending Spanish language

school, handing off his West Palm Beach investigative work, and going on a

series of temporary duty assignments in Mazatlan. HT at 264-65 (testimony of

the appellant). On February 25, 2021, while the appellant was still assigned to

the West Palm Beach District Office, the appellant and RD Palmeri met with a

Confidential Source (CS) 2 and conducted a debrief at the CS’s residence in

Miami, Florida. IAF, Tab 1 at 9. On March 25, 2021, an agency official reported

that RD Palmeri had met with a CS and other individuals despite a directive

CS and Confidential Informant are used interchangeably. IAF, Tab 1 at 10.

prohibiting the meetings and requested an investigation. Id. The appellant was

interviewed in connection with this investigation on April 30, May 26, and

September 8, 2021. IAF, Tab 5 at 227-278, 406-490; Tab 7 at 4-57.

¶3 On December 22, 2021, the agency proposed the appellant’s removal based

on the charges of improper association with a CI/Suspect, lack of candor, failure

to follow written or oral instructions, and false statements/documents. IAF, Tab 1

at 9-23. The charges alleged that the appellant engaged in improper association

with a CS when he conducted a debriefing in a social setting at the CS’s

residence, in the presence of the CS’s spouse and friends, and where the CS

provided food and drinks; that the appellant knowingly provided less than candid

responses to questions as to whether he consumed alcohol during the debriefing;

that the appellant failed to timely submit a DEA-6 form documenting the

debriefing; and that the appellant knowingly provided false statements to

investigators regarding a violation of a confidentiality agreement. Id. On

May 24, 2022, the deciding official, S. Sutherland, issued a decision letter

sustaining the charges and removing the appellant effective the next day. IAF,

Tab 1 at 24-26, Tab 4 at 19.

¶4 The appellant timely filed the instant petition for review. IAF, Tab 1. After

holding the requested hearing, the administrative judge issued an initial decision

mitigating the agency’s action. IAF, Tab 46, Initial Decision (ID) at 1. The

administrative judge concluded that the agency did not prove its charges of

improper association with a CI/Suspect, ID at 3-13, lack of candor, ID at 13-16,

and false statements/documents, ID at 16-20. However, she sustained the third

charge of failure to follow written or oral instructions. ID at 16. The

administrative judge thereafter found that the agency proved nexus, ID at 20, but

that the penalty of removal was beyond the maximum reasonable penalty for the

sustained charge, ID at 20-23. The administrative judge mitigated the penalty to

the maximum reasonable penalty warranted for the charge of failure to follow

written or oral instructions, which in this case she found to be a letter of

reprimand. ID at 23.

¶5 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. The appellant filed a response, PFR File, Tab 3, and the agency filed a

reply, PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On review, the agency argues that the administrative judge erred in finding

that the agency did not prove its charges of improper association with a

CI/Suspect, lack of candor, and false statements/documents, and that the

administrative judge erred in mitigating the penalty of removal to a letter of

reprimand. PFR File, Tab 1 at 9-23. We address these arguments below.

The administrative judge properly found that the agency did not prove the first

charge, improper association with a CI/Suspect.

¶7 In the notice of proposed removal (NOPR), the agency alleged:

[O]n February 25, 2021, you engaged in improper association with a CS

when you met with a CS at the CS’s residence, and conducted a

debriefing while the CS’s spouse was seated at the table with you, as

well as RD Palmeri, and RD Palmeri’s spouse. In addition, while at

the CS’s residence, you participated in a social setting where food

and drinks, including alcohol, were provided by the CS. In the

multiple hours you spent at the CS’s residence, there were other

non-law enforcement personnel present on the CS’s property,

including the CS’s family members, as well as a male and female

friend of the CS’s, who were preparing the food. By your own

admission, DEA sensitive law enforcement information was

discussed during the CS debriefing, and the CS’s spouse was within

hearing distance of the conversation.

IAF, Tab 1 at 10. The agency cited two internal policies in support of its charge,

which state that:

DEA employees are prohibited from associating with individuals

known or suspected to be involved in illegal drug trafficking or other

criminal activity in other than a strictly professional capacity. This

prohibition also applies to CSs and former CSs. Extrinsic social,

financial or business contacts with individuals of this nature are

expressly prohibited. DEA employees are to strictly maintain only

the highest standards of conduct with respect to informants, known

criminals, or with individuals engaged in criminally violative

activity.

...

A Controlling Investigator shall not socialize with a CS except to the

extent necessary and appropriate for operational reasons. Personal

business, social, or romantic relationships between DEA employees

or other authorized personnel and CSs are strictly prohibited.

Id. at 12-13. In the proposal, the agency also further discussed several statements

that the appellant made in his investigative interviews regarding the above

allegations and his alleged improper association with the CS, including the

appellant’s testimony that he and RD Palmeri were at the CS’s property for

approximately 3-4 hours, during which the CS showed them around the property;

the CS served food, wine, and beer; RD Palmeri brought his wife, and the wife

and the CS’s spouse were “within earshot” when the appellant and RD Palmeri

debriefed the CS about drug trafficking information. Id. at 10-13.

¶8 In the initial decision, the administrative judge thoroughly discussed the

allegations and testimony cited in the NOPR regarding the circumstances of the

February 25 debriefing, as well as the hearing testimony of S. Sutherland, the

deciding official; the appellant; RD Palmeri; and J. Hunt, an expert in DEA

policy and procedures relating to federal narcotic investigations, including

control of cooperating sources and the implementing chain of command for

special agents. ID at 3-9. Among other things, the administrative judge noted

that the appellant testified that he had previously worked with the CS and

RD Palmeri, and that, in early 2021, RD Palmeri ordered him to go to a

debriefing of the CS because the appellant had knowledge of the inner workings

in Mexico. ID at 6-7. The administrative judge noted that the appellant

recognized that it “was not good” when RD Palmeri arrived at the debriefing with

his wife but that he explained that RD Palmeri was a senior executive and agents

are told to never to leave another agent alone with a CS. ID at 7; HT at 284-85

(testimony of the appellant). The administrative judge also noted that the

appellant testified that because the three individuals had not seen each other in a

while, there was time spent communicating on a personal level and the CS was

excited to show them around his property. ID at 7. She also explained that both

the appellant and RD Palmeri testified that during the debriefing, the appellant,

RD Palmeri, and the CS sat down at one end of two 6-feet long picnic tables

pushed together with the wives at the other end. ID at 7; HT at 271-72 (testimony

of the appellant). The administrative judge also discussed J. Hunt’s testimony

that informants are not “robots” and that agents cannot help having a certain level

of social interaction with an informant who is trusting the agent with their life.

ID at 9.

¶9 In analyzing the charge, the administrative judge reviewed the language of

the two internal policies cited above and found, among other things, that a “fair

reading” of the two provisions is that the DEA prohibits its agents from engaging

in a personal, social relationship with a CS outside of the professional one, but

that “some socialization with a CS is allowed as long as the agent is acting in a

‘strictly professional capacity’ and ‘to the extent it is necessary and appropriate

for operational reasons.’” ID at 10; IAF, Tab 1 at 12-13. The administrative

judge concluded that the appellant went to the February 25 debriefing in a

“strictly professional capacity” because he was ordered to attend by a highly

ranked superior in charge of his future placement and because there was no

evidence that the appellant otherwise had a social friendship with the CS. ID

at 10. In addition, the administrative judge found that the appellant’s conduct did

not go beyond what she considered necessary and appropriate for operational

reasons because she credited J. Hunt’s testimony that it is routine for agents to

meet at an informant’s residence; she found that the appellant’s acquiescence to a

tour of the CS’s property appeared to be nothing more than being congenial; and

she found that although the spouses may have been within “earshot” of the

debriefing, J. Hunt testified that he had met informants literally hundreds of times

in restaurants where a debriefing could be conducted in a manner where others

cannot hear what is being said, and that this was no different. ID at 9-13. The

administrative judge also found that the agency did not show that the appellant

drank any alcohol during the debriefing or that the appellant’s presence alone

while others were drinking showed that the appellant violated the agency’s

improper association policies. ID at 12. Additionally, the administrative judge

discussed the fact that although S. Sutherland testified that the appellant should

have disengaged himself from the debrief at some point and violated DEA policy

by not doing so, S. Sutherland’s “failure to acknowledge at least some of the facts

that support[ed] the appellant’s position show[ed] a demeanor of a determined

bias against him, which render[ed] S. Sutherland’s testimony unpersuasive.” ID

at 11 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)).

The administrative judge thus concluded that the agency did not prove the charge.

ID at 13.

¶10 On review, the agency first argues that the administrative judge erroneously

interpreted and applied the two above-noted DEA policies by ignoring in her

analysis the fact that the first policy states that DEA employees are to “strictly

maintain only the highest standards of conduct with respect to informants” and

that the second policy states that “[p]ersonal business, social, or romantic

relationships between DEA employees or other authorized personnel and CSs are

strictly prohibited.” PFR File, Tab 1 at 11-13; IAF, Tab 1 at 12-13. To this end,

the agency claims that the administrative judge’s “selective” interpretation of

these policies to mean improper association is “no personal social relationship

outside of the professional one,” is contradictory to the plain language of the

policies, and that DEA policy clearly prohibits more than simply a “relationship

with informants outside of the DEA relationship.” PFR File, Tab 1 at 12-13; ID

at 10. However, the agency’s arguments are unpersuasive. The administrative

judge correctly cited the language of the policies the agency referenced in its

NOPR in her initial decision. ID at 3; IAF, Tab 1 at 12-13. The administrative

judge did not, as the agency argues, find that improper association simply means

no relationship with a CS outside of the DEA relationship. The administrative

judge explained that the agency could prove its improper association charge by

showing that the appellant’s conduct at the debriefing went beyond what is

considered necessary and appropriate for operational reasons. ID at 13.

Although the administrative judge may have focused on a specific phrase in the

first policy that states that DEA employees are prohibited from associating with

CSs in “other than a strictly professional capacity,” and a phrase in the second

policy that states that investigators shall not socialize with a CS “except to the

extent necessary and appropriate for operational reasons,” a full reading of her

analysis demonstrates that she correctly understood and applied the language of

the two DEA policies. ID at 9-13. Her discussion encompassed an analysis of

whether the appellant “strictly maintain[ed] only the highest standards of

conduct” with respect to the debriefing. ID at 3, 9-13. We see no error in the

administrative judge’s interpretation and application of the two DEA policies. 3

See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (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 issues

of credibility).

¶11 The agency also puts forth that it believes that the appellant’s conduct at the

February 25 debriefing was an extrinsic social contact with a CS, an association

in “other than a strictly professional capacity,” was not of the “highest standards

of conduct,” and was not “necessary and appropriate for operational reasons.”

PFR File, Tab 1 at 13-14. The agency reiterates that it believes that the

In addition, the second policy that the agency cited in its notice of proposed removal

appears to apply only to “controlling investigators.” IAF, Tab 1 at 13. As the

administrative judge noted, the agency did not present evidence that the appellant was a

“controlling investigator.” ID at 9 n.4. However, we agree with the administrative

judge that there is no need to address this discrepancy because the agency did not show

that the appellant engaged in improper association as defined by either policy. ID at 9

n.4.

appellant’s actions of touring the CS’s property, engaging in conversation

unrelated to DEA business, and having dinner where both alcohol and the spouses

were present, as a whole, are “material evidence” that the appellant improperly

associated with the CS. Id. at 13. However, the agency’s arguments clearly

constitute mere disagreement with the administrative judge’s weighing of the

evidence and provide no reason for disturbing the initial decision. See

Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359

(1987) (the appellant’s mere disagreement with the administrative judge’s

weighing of the evidence does not establish a basis for review).

¶12 The agency also contends that the administrative judge erroneously looked

at each aspect of the February 25 meeting separately, instead of looking at the

entirety of the circumstances. PFR File, Tab 1 at 14 n.4. We disagree. Although

the administrative judge considered in turn the various allegations the agency

made in its NOPR as to why the appellant improperly associated with the CS, the

administrative judge still implicitly considered the totality of the circumstances.

ID at 9-13. Additionally, the agency argues that the administrative judge ignored

J. Hunt’s testimony that it was not “operationally necessary” for non-DEA

personnel to be present at a CS debriefing or to have dinner with the spouses

present. PFR File, Tab 1 at 13; HT at 218-19 (testimony of J. Hunt). However,

the administrative judge’s failure to mention all of the extensive testimony and

evidence does not mean that she did not consider it in reaching her decision. See

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

¶13 With regard to the first charge, the agency also argues in its petition for

review that the administrative judge erroneously focused on whether the two

spouses had “overheard” the debriefing in her analysis of whether the agency

showed improper association, instead of that it was inappropriate for the spouses

to be present at the briefing at all. PFR File, Tab 1 at 14-15. To this end, the

agency emphasizes that the NOPR did not conclude that the spouses overheard

the debriefing; rather, it noted that the spouses were within “earshot” when the

debriefing occurred, which was inappropriate as those non-DEA personnel could

have potentially overheard sensitive, confidential information. Id. at 15. The

agency argues that the administrative judge erred in concluding that the spouses

seated at the end of the table was no different than a restaurant setting, because

her conclusion ignored an important distinction that, here, the “others” were

spouses, in a venue hosted by the CS, where food and alcoholic drinks were

present. Id.

¶14 The agency’s arguments are unpersuasive. In support of the first charge in

the NOPR, the agency repeatedly discussed testimony from its investigative

interviews regarding how the “CS’s spouse was seated at the table,” that “the

CS’s spouse was within hearing distance,” “whether there were other people at

the table,” and “whether the spouses were in earshot.” IAF, Tab 1 at 10-11. In

the initial decision, the administrative judge noted that the proposed removal gave

the “impression that the CS’s spouse was participating in the debriefing itself,”

and she discussed testimony on this issue and stated that “the agency’s conclusion

that [the spouses] overheard the details of the debriefing” was not supported. ID

at 12. We discern no error in the administrative judge expounding on her reading

of the proposed removal on this issue. Furthermore, the administrative judge

considered the agency’s argument as to the appropriateness of the spouses’

presence because she specifically discussed hearing testimony on this issue,

including S. Sutherland’s unpersuasive testimony that “it was highly improper to

have a family member or others present while the debriefing was occurring,” ID

at 5, the appellant’s consistent testimony that he has previously met a CS at their

home with family members present, ID at 7, RD Palmeri’s testimony that the

debriefing was limited to himself, the appellant, and the CS, ID at 8, and J.

Hunt’s testimony that it was not apparent that the spouses overheard the

debriefing and that it would have been worse for the appellant to have left

RD Palmeri with the CS, ID at 9. Although the agency disputes the

administrative judge’s conclusion that the presence of the spouses was similar to

that of a debriefing being conducted near other patrons at a restaurant, the

agency’s argument, as do its other contentions, simply disagrees with the

administrative judge on this point. See Yang v. U.S. Postal Service, 115 M.S.P.R.

112, ¶ 12 (2010) (stating that arguments that constitute mere disagreement with

the initial decision do not provide a basis to grant the petition for review).

¶15 Finally, the agency argues on review that the administrative judge

erroneously found that “the meal and drinks with the CS” did not violate agency

policy. PFF File, Tab 1 at 16. In the initial decision, the administrative judge

addressed the fact that the CS served food at the February 25 debriefing and

stated that “there is no evidence that [the meal] was anything other than some

bar-b-que ribs, which in and of itself appears somewhat harmless, [and] not

violative of the agency’s policy,” citing in a footnote the agency’s policy

regarding exchanging gifts and engaging in a financial transaction with a CS. ID

at 12. The administrative judge also found that the agency did not show that the

appellant drank any alcohol and that his presence while others were drinking was

not unlike a restaurant setting and did not show that he violated the agency’s

improper association policy. ID at 12. In its petition, the agency claims that the

administrative judge “incorrectly relied” on its provision regarding gifts because

the appellant was not charged with violating that policy. PFR File, Tab 1 at 16.

However, the agency included this provision in the agency file, and the deciding

official, S. Sutherland, testified that he believed an informant providing a meal

was “tantamount to a gift.” IAF, Tab 8 at 37; HT at 43 (testimony of S.

Sutherland). Furthermore, such an analysis goes to the issue of whether the

appellant engaged in conduct with the CS that was “expressly prohibited.” IAF,

Tab 1 at 12. The agency also reargues that the administrative judge failed to

examine the meal “in the context of the totality of the circumstances,” and that

the meal was not “somewhat harmless” because in combination with it being at

the CS’s residence, with the spouses and alcohol present, the situation was not of

the “highest standards of conduct” or “necessary and appropriate for operation

reasons.” PFR File, Tab 1 at 16. However, these arguments, again, also provide

no basis for disturbing the initial decision. See Yang, 115 M.S.P.R. 112, ¶ 12; see

also Crosby, 74 M.S.P.R. at 106.

The administrative judge properly found that the agency did not prove the second

charge, lack of candor.

¶16 To prove a charge of lack of candor, the agency must prove that (1) the

appellant gave incorrect or incomplete statements and (2) that he did so

knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17

(2016). Unlike falsification, lack of candor does not require an intent to deceive.

Id., ¶ 16. A lack of candor charge may involve a failure to disclose something

that, under the circumstances, should have been disclosed to make the given

statement accurate and complete. Ludlum v. Department of Justice, 278 F.3d

1280, 1284 (Fed. Cir. 2002). Lack of candor is a broader and more flexible

concept whose contours and elements depend upon the particular context and

conduct involved. Id.

¶17 In the NOPR, the agency alleged that during the appellant’s May 26, 2021

supplemental interview, he “knowingly provided less than candid responses to

[Office of Professional Responsibility (OPR)] Inspectors[’] questions as to

whether [he] consumed alcohol during a CS debriefing, resulting in a lack of

candor.” IAF, Tab 1 at 13. The proposal described the appellant’s responses to

the questions of whether he brought or drank alcohol at the February 25

debriefing as evasive, such as when he responded with answers like: “I’m a Bud

Light drinker, sir. So, I don’t drink wine. If the CS had, I know the CS had other

beer there, I just can’t remember what type exactly;” “To my recollection, no,

sir;” “To my recollection, I can’t recall, sir, because typically when I meet with

the CS, in particular, I always bring a big Diet Coke, because I know, I’ve known

for years, CS drinks red wine, and I’m not a wine drinker. And, obviously, in my

OGV I’m not going to drink.” Id. The NOPR also noted that in response to the

investigators’ questions regarding whether the appellant brought alcohol, his

answer included, “sir, if the CI said that I drank, yes, sir, I drank. I just don’t

recall whether – I know that I don’t drink red wine. I know I don’t drink –,” IAF,

Tab 1 at 13, and that in response to a later question as to “whether, if it was the

CS that told them that [the appellant] drank alcohol, was it still [the appellant’s]

statement that [he] did not drink alcohol, that [he] only drank soft drinks and

water,” and the appellant replied “Sir, to my recollection, I do not recall if I drank

alcohol. If this CS told you that I had alcohol at that meeting, then I had alcohol

at that meeting,” Id. at 14; IAF, Tab 5 at 431, 457.

¶18 In the initial decision, the administrative judge discussed that while S.

Sutherland testified that he did not find the appellant credible because the

appellant provided qualified and rambling responses rather than merely saying

“yes or no,” the appellant testified that he did not bring or drink alcohol during

the entirety of the February 25 meeting and RD Palmeri testified that he did not

see the appellant drink alcohol. ID at 14. In her analysis, the administrative

judge concluded that the agency did not prove the first prong of the lack of

candor test, that the appellant in fact gave false information, because the agency

did not present any testimonial or documentary evidence that the appellant in fact

drank alcohol during the debriefing. ID at 15. She also explained that she was

“not convinced” the appellant lacked candor when he stated, “well if the CS said I

drank, I drank,” because, although she found it a strange reply, she credited the

appellant’s testimony that he was frustrated with the interview and exasperated

with the number of times he was asked the same question. ID at 15-16. She also

pointed out that when asked if the appellant had a beer or a glass of wine, the CS

said “Yes. I think yes,” which she noted was hardly definitive and misrepresented

by the investigators. ID at 16; IAF, Tab 5 at 367-68.

¶19 On review, the agency argues that the administrative judge erroneously

discounted the fact that the appellant provided three conflicting responses as to

whether he consumed alcohol and that the appellant admitted he made an

inaccurate statement, which shows that it proved the appellant was not truthful.

PFR File, Tab 1 at 17. In this regard, the agency points out that the appellant first

said “No, sir” in response to the question of whether he consumed alcohol,” and

then said, “Sir, to my recollection, I do not recall if I drank alcohol,” followed by,

“If this CS told you that I had alcohol at that meeting then I had alcohol at that

meeting.” Id.; IAF, Tab 1 at 13-14, Tab 5 at 431, 457. The agency also disputes

the appellant’s contention that he was frustrated by being asked the same question

numerous times, noting that the appellant first stated “sir, if the CI said that I

drank, yes, sir, I drank” in response to the agency’s questioning about whether the

appellant brought alcohol, not whether he drank alcohol, which “directly

contradicts” his frustration about being asked the same question repeatedly. PFR

File, Tab 1 at 19; IAF, Tab 1 at 13, Tab 5 at 431. Additionally, the agency

contends that the administrative judge erred by failing to address the second

prong of the lack of candor test, and it reargues that it proved the appellant’s

intent to give an inaccurate statement concerning his own alcohol consumption.

PFR File, Tab 1 at 18.

¶20 We are not convinced by the agency’s arguments. The administrative judge

thoroughly reviewed the agency’s charge, the hearing testimony related to this

issue, and the case law regarding lack of candor in her initial decision. ID

at 13-16. Each of the appellant’s responses that the agency points out above were

specifically discussed in the NOPR that the administrative judge reviewed. IAF,

Tab 1 at 13-14. We agree with the administrative judge that the record does not

show that the appellant in fact consumed alcohol during the February 25

debriefing. ID at 15. Contrary to the agency’s assertions, the administrative

judge’s focus on this issue was necessary to the analysis because the agency

charged the appellant with lack of candor as to whether he “consumed” alcohol

during the debriefing. PFR File, Tab 1 at 17 n.5; IAF, Tab 1 at 13. Further,

although the agency contends that the appellant admitted his comment of “if the

CS said I drank alcohol, then I must have had alcohol” was “inaccurate,” he

actually testified, “I was wrong in saying that, Your Honor. But at that point, I

didn’t want to use profanity and be charged with unprofessional conduct.” PFR

File, Tab 1 at 18; HT at 332 (testimony of the appellant). Although we

understand the agency’s arguments about the appellant’s responses and the timing

of those responses, it is not obvious, and we do not agree, that the appellant

necessarily made false statements as to whether he consumed alcohol given the

repeated and convoluted nature of the agency’s questions during the investigative

interview and after considering the appellant’s answers in context. IAF, Tab 5

at 406-490.

¶21 In any case, we find that the appellant did not knowingly give an incorrect

or incomplete statement. Although the administrative judge may not have made

an explicit finding as to this second prong of the lack of candor test because she

found that the appellant did not give a false statement, she made credibility

findings that are sufficient to satisfy the same. Specifically, as noted above, the

administrative judge concluded that she was “not convinced” the appellant lacked

candor when he stated, “if the CS said I drank, I drank,” because she credited his

testimony that he was frustrated with the investigative interview. ID at 15-16.

We find that this is an implicit finding that the appellant did not give a knowingly

false statement. Although the agency challenges the appellant’s contention that

he was frustrated by the interview, its argument really boils down to disagreement

with the administrative judge’s credibility determinations. PFR File, Tab 1

at 18-19. However, the Board must give deference to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing, and 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 agency has not presented sufficiently sound reasons here. Furthermore, in

this regard we note that the two “conflicting” responses the agency alleges the

appellant gave as to whether he consumed alcohol at the debriefing—“Sir, to my

recollection, I do not recall if I drank alcohol,” followed by, “If this CS told you

that I had alcohol at that meeting then I had alcohol at that meeting”—were both

made during the interaction in which the administrative judge credited the

appellant’s testimony that he was frustrated. PFR File, Tab 1 at 17; IAF, Tab 1

at 13-14, Tab 5 at 457. Consequently, we find the agency’s arguments unavailing

and affirm as modified her decision to not sustain the lack of candor charge.

The administrative judge properly found that the agency did not prove the fourth

charge, false statement/documents.

¶22 To establish a charge of misrepresentation, falsification, or lying, an agency

must prove that an appellant (1) supplied wrong information; and (2) knowingly

did so with the intention of defrauding, deceiving, or misleading the agency for

his own private material gain. Boo v. Department of Homeland Security,

122 M.S.P.R. 100, ¶¶ 10-12 (2014). In the NOPR, the agency alleged that during

the appellant’s third supplemental investigative interview on September 8, 2021,

the appellant “knowingly provided false statements to OPR Inspectors’ questions

regarding whether [he] spoke with anyone about [his] OPR interview, or theirs,

with the intent to deceive DEA and evade the consequences for violating the

[O]PR Confidentiality Agreement.” IAF, Tab 1 at 17. The NOPR explained that

during the appellant’s first OPR interview on April 30, 2021, the appellant signed

a confidentiality agreement prohibiting him from disclosing to anyone that he had

been interviewed by OPR or that OPR was conducting an investigation into the

meeting with the CS, that the agency later questioned the appellant about whether

he had discussed the information from his OPR interview with anyone else or if

anyone else discussed their OPR interview with him and that the appellant

answered in the negative, and that the appellant’s statements that he did not

violate the confidentiality agreement were false because RD Palmeri signed a

sworn statement admitting that he and the appellant had discussed the appellant’s

OPR interview. Id. at 17-18.

¶23 In the initial decision, the administrative judge thoroughly reviewed the

NOPR and the testimony related to this charge, including the appellant’s and

RD Palmeri’s testimony that RD Palmeri called the appellant on April 30, 2021,

and directly asked him whether he had been interviewed by OPR, that the

appellant responded affirmatively, and that no other details of the interview were

discussed. ID at 16-19. She also noted that the appellant testified that he did not

believe telling RD Palmeri about his OPR interview was a violation of the

confidentiality agreement because RD Palmeri was his SES supervisor and

employees are required to notify their supervisors when being interviewed by

OPR; that he did not discuss the contents of his interview with anyone; and that

he believed that he was providing truthful responses to OPR’s questions. ID

at 18-19. The administrative judge thereafter concluded that although there was

no doubt that the appellant supplied incorrect information to OPR, he did not do

so knowingly. ID at 19-20. The administrative judge credited the appellant’s

testimony that he believed he was answering the OPR’s interview questions

truthfully, including because his demeanor at the hearing was “straightforward

without dissimulation” and his “testimony was direct and matter of fact with no

pretense.” ID at 19. She also found that because the appellant informed his West

Palm Beach supervisors that he had been interviewed by OPR, it was

“understandable” that he believed he needed to inform RD Palmeri when directly

asked, and because she credited the appellant’s testimony that he interpreted

OPR’s questions as going to the content of his previous interviews rather than the

mere fact that he was interviewed at all. ID at 19-20.

¶24 On review, the agency recognizes that the administrative judge made

explicit demeanor-based credibility determinations with respect to this charge and

that our reviewing court has held, as noted above, that the Board must defer to an

administrative judge’s findings regarding credibility when those findings are

based on the demeanor of the testifying witnesses and that it may overturn

demeanor based credibility findings only if the Board has sufficiently sound

reasons for doing so. Haebe, 288 F.3d at 1301; PFR File, Tab 1 at 20. Here, the

administrative judge appropriately relied on the factors set forth in Hillen,

35 M.S.P.R. at 458, to assess witness credibility and found the appellant to be

credible. ID at 19. The agency does not challenge the administrative judge’s

demeanor-based credibility findings, but instead argues that because the

administrative judge’s two “remaining reasons” for finding that the appellant did

not knowingly supply incorrect information are erroneous, her finding that the

agency did not prove this charge is “untenable.” PFR File, Tab 1 at 19-22.

Nevertheless, the fact remains that the administrative judge’s conclusion is based

on her demeanor-based credibility findings and that the agency has failed to

provide a basis for disturbing those credibility findings. Therefore, we do not

disturb the administrative judge’s determination that the agency did not prove the

charge of false statement/documents.

We discern no error in the administrative judge’s decision to mitigate the penalty

to a letter of reprimand.

¶25 As discussed above, although the administrative judge did not sustain three

of the agency’s charges, she did sustain the charge of failure to follow written or

oral instructions, which alleged that the appellant failed to follow written

instructions when he failed to prepare and submit a DEA-6 form documenting the

February 25, 2021 debriefing within 10 business days of the debriefing. ID at 16;

IAF, Tab 1 at 15. When, as here, not all of the agency’s charges are sustained,

the Board will consider carefully whether the sustained charges warrant the

penalty imposed by the agency. Blank v. Department of the Army, 85 M.S.P.R.

443, ¶ 9 (2000), aff’d, 247 F.3d 1225 (Fed. Cir. 2001). In doing so, the Board

must first examine whether the agency has indicated either in its final decision or

during proceedings before the Board that it desires a lesser penalty in the event

not all of the charges are sustained. LaChance v. Devall, 178 F.3d 1246, 1260

(Fed. Cir. 1999). If the agency has not so indicated, the Board may presume that

the agency desires the maximum reasonable penalty and must examine whether

the agency-imposed penalty is within the maximum limits of reasonableness. Id.

The Board is ultimately required to independently balance the relevant Douglas

factors with heightened sensitivity when reviewing agency penalties upon fewer

charges than those brought by the agency. Id. at 1257; see Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list

of 12 relevant factors to be considered in determining the appropriateness of an

imposed penalty).

¶26 Here, the administrative judge reviewed the testimonial and documentary

evidence and found that, although the deciding official testified that the failure to

follow instructions charge was the least serious charge, the agency never stated

that it desired that a lesser penalty be imposed if only one of the four charges was

sustained. ID at 22; HT at 154 (testimony of S. Sutherland). The administrative

judge therefore reviewed the penalty determination to determine whether removal

was the maximum reasonable penalty for the single, sustained charge. 4 ID at 22.

The administrative judge discussed S. Sutherland’s testimony that the appellant’s

failure to timely submit a DEA-6 form was serious because that form documents

not only the contents of the interview but the fact that it occurred, and the fact

that he did not credit the fact that RD Palmeri instructed the appellant to delay

preparing the DEA-6 form until after the appellant completed language school

and could return to the CS for a follow-up interview. ID at 22. While the

administrative judge acknowledged the agency’s need to keep timely and accurate

records, she concluded that S. Sutherland’s assessment of the charge was

erroneous because he did not consider as mitigating the fact that an SES directed

the appellant not to submit a report at the time of the February 25 debriefing and

that the appellant eventually submitted a DEA-6 form memorializing the

information obtained during the debriefing. ID at 22-23. The administrative

judge concluded that considering the appellant had no prior disciplinary record

In the initial decision, the administrative judge stated that her analysis turned on

“whether demotion was in fact the maximum reasonable penalty,” instead of removal,

however this seems to be a simple editing error. ID at 22 (emphasis added).

and a good performance, removal was beyond the maximum reasonable penalty

based on the sustained charge and that mitigation to a letter of reprimand was

warranted. ID at 23.

¶27 On review, the agency argues that the administrative judge erred in

mitigating the penalty because the record shows that the RD Palmeri never

directed the appellant not to submit a DEA-6 form, and instead only directed him

to conduct a full debrief of the CS when he was done with language school, and

because the appellant’s later-submitted DEA-6 report did not mention the actual

February 25 meeting and such information was needed to verify that the interview

actually occurred. PFR File, Tab 1 at 22-23. However, the administrative judge

considered all of these points in the initial decision. ID at 16, 22-23. The

agency’s arguments again disagree with the administrative judge’s evaluation of

the evidence, which provides no basis for granting its petition for review. See

Broughton, 33 M.S.P.R. at 359.

¶28 The agency also argues that the administrative judge “abused her

discretion” and erred in her application of the law in mitigating the penalty

because she did not indicate that she balanced the Douglas factors and she did not

express how she concluded that a letter of reprimand was warranted. PFR File,

Tab 1 at 23. Contrary to the agency’s assertion, however, the administrative

judge explicitly discussed Douglas and recited the list of factors to be determined

in considering the appropriateness of the penalty. ID at 21-22. In her penalty

analysis, the administrative judge also explicitly considered Douglas factors such

as the nature and seriousness of the offense, the appellant’s past disciplinary

record, the appellant’s past work record and his performance on the job, and

numerous mitigating circumstances surrounding the charge. ID at 22-23; see

Douglas, 5 M.S.P.R. at 305. The agency has not pointed us to any specific

Douglas factor that is especially relevant here that the administrative judge failed

to consider or that supports a different penalty. PFR File, Tab 1 at 23; see

Douglas, 5 M.S.P.R. at 306 (explaining that not all of the 12 factors will be

pertinent in every case).

¶29 To the extent the agency suggests that a more severe penalty is warranted

and contends that the administrative judge only presented a cursory analysis in

deciding that a letter of reprimand was appropriate in this case, although we

supplement the administrative judge’s penalty analysis herein, we are not

persuaded that the administrative judge erred. PFR File, Tab 1 at 22-23. In

addition to the Douglas factor findings above that the administrative judge

properly discussed, we have considered, as did the deciding official, that the

appellant has over 24 years of Federal service and 17 years of service as a Special

Agent, that the appellant’s misconduct did not negatively affect the DEA’s

reputation, and that a letter of reprimand is consistent with the agency’s table of

penalties, which provides for a reprimand to removal for a first offense of failure

to follow written or oral instructions. See Douglas, 5 M.S.P.R. at 305-06; IAF,

Tab 4 at 23-25. Although we note that the Board has long recognized that law

enforcement officers are held to a higher standard of conduct than other

employees, we find that here, the appellant’s singular failure to follow

instructions in timely completing the DEA-6 form does not bear on his integrity,

truthfulness, credibility, or ability to perform his duties at a satisfactory level, or

indicate that he has a poor potential for rehabilitation. Cantu v. Department of

the Treasury, 88 M.S.P.R. 253, ¶ 8 (2001); see Douglas, 5 M.S.P.R. at 305-06;

IAF, Tab 4 at 23-29. Upon balancing all of the relevant Douglas factors, we

agree with the administrative judge’s decision to mitigate the penalty to a letter of

reprimand.

ORDER

¶30 We ORDER the agency to cancel the removal action and substitute it with a

letter of reprimand. See Kerr v. National Endowment for the Arts , 726 F.2d 730

(Fed. Cir. 1984). The agency must complete this action no later than 20 days

after the date of this decision.

¶31 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶32 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶33 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶34 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

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

Boards 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