UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRADFERD C. BIDNICK,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

AT-0752-14-0060-I-1

DATE: April 15, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joseph E. Benitez, Coral Gables, Florida, for the appellant.

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

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained his removal for misconduct. Generally, we grant petitions such as this 

one only when: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the judge’s rulings 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 On September 18, 2013, the agency appointed the appellant to the position 

of GL-09 Criminal Investigator. 2

 Initial Appeal File (IAF), Tab 6, Subtab 4c at 

56. Upon his appointment, the appellant was enrolled in special agent training. 

Id. at 58. As an enrollee, he was subject to the agency’s Special Agent Trainee 

Honor Code (Honor Code). IAF, Tab 5 at 62, 66-67.

¶3 While the appellant was still in the training program, the agency proposed 

his removal based on one charge of violating the Honor Code by cheating on a 

written examination. 3

 Id. at 56-59. Specifically, the agency alleged that on 

March 26, 2013, the appellant was observed viewing another trainee’s 

examination materials and marking his own answer sheet after viewing those 

 2 The appellant was previously a GS-13 Physical Security Specialist with the same 

agency and transferred to the Criminal Investigator position without a break in service. 

Initial Appeal File (IAF), Tab 6, Subtab 4c at 56. It is undisputed that he was an 

“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) with Board appeal rights at the time of 

his removal. IAF, Tab 5 at 5.

3 The Honor Code states that “special agent trainees, in performance of their official 

duties, will not lie, cheat, steal or tolerate those who do. Any violation of the Honor 

Code may result in termination from training.” IAF, Tab 5 at 66 (emphasis in the 

original). The Honor Code provides a definition of “cheating,” and the appellant does 

not dispute that his alleged actions, if proven, would constitute cheating under that 

definition. Id.
3

materials. Id. at 56. After receiving the appellant’s response to the proposal, 

IAF, Tab 6, Subtab 4c at 4-55, the agency removed him effective September 4, 

2013, IAF, Tab 5 at 22-28.

¶4 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 

22-23. He disputed the charge and the penalty, and he raised affirmative defenses 

of harmful procedural error, violation of due process, and whistleblower reprisal.4

 

IAF, Tab 20 at 1-6. After a hearing, the administrative judge issued an initial 

decision affirming the removal and finding that the appellant failed to prove his 

affirmative defenses. IAF, Tab 33, Initial Decision (ID).

¶5 The appellant has filed a petition for review, contesting the administrative 

judge’s findings on the charge, the penalty, and his harmful error and due process 

affirmative defenses. Petition for Review (PFR) File, Tab 4. The agency has 

filed a response. PFR File, Tab 6.

The agency proved its charge by preponderant evidence.

¶6 Regarding the charge itself, the appellant argues that the agency’s evidence 

was insufficient to prove that he copied the other trainee’s work as alleged. PFR 

File, Tab 4 at 16-20, 28. Briefly, the agency’s evidence in support of its charge 

was from three sources: (1) the observations of the Basic Training Programs 

Branch Chief, who sat in the front of the classroom during the examination, 

(2) the observations of the Staff Administrator, who sat in the back of the 

classroom during the examination, and (3) the appellant’s and the other trainee’s 

 4 At the prehearing conference, the administrative judge declined to accept the 

appellant’s whistleblower defense for adjudication because he failed to describe the 

nature of his two disclosures, and the timing of one disclosure was such that it could not 

have been a contributing factor in the removal. IAF, Tab 20 at 6-7. The appellant 

objected to the administrative judge’s ruling and belatedly filed further evidence and 

argument on the issue. IAF, Tab 27 at 5-7, Tab 29 at 11-13. The administrative judge 

noted that the appellant’s submission was untimely, but she nevertheless adjudicated the 

whistleblower defense and found that, assuming the appellant made a protected 

disclosure, it was not a contributing factor in his removal. IAF, Tab 33, Initial Decision

at 16. The appellant does not challenge the administrative judge’s finding regarding 

this claim, and we discern no reason to disturb it.
4

multiple choice answer sheets, which showed some similarities to one another. 

IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g; Hearing Transcript, Volume I (HT I) at 

77 (testimony of the Staff Administrator), 129 (testimony of the Branch Chief). 

Specifically, the Branch Chief testified that, during the course of the 20- to 

25-minute examination, he observed the appellant put his right elbow on his desk, 

lean his head into his hand, and glance to the left at another trainee’s test 

materials approximately twenty times. HT I at 138-41. He further testified that, 

on two occasions, he saw the appellant look at the other trainee’s materials and 

immediately mark his own answer sheet. Id. at 141-42. The Staff Administrator 

testified that she observed the appellant rest his elbow on his desk, his head in his 

hand, and glance three or four times to his left at the other trainee’s examination 

materials. Id. at 83-89. As for the answer sheets, out of fifty questions, the 

appellant and the other trainee answered the same three incorrectly. IAF, Tab 5 

at 75; HT I at 90 (testimony of the Staff Administrator). Of those three, the 

appellant and the other trainee supplied the same incorrect answer for two of 

them. IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g. There were fifteen trainees taking 

the examination that day, IAF, Tab 1 at 75; HT I at 114 (testimony of the Staff 

Administrator), and the examination took place in what could be fairly 

characterized as a typical classroom setting, with three rows of eight desks and 

chairs, IAF, Tab 6, Subtab 4c at 134, 136, Tab 14 at 94-100. The appellant sat in 

the front row. IAF, Tab 6, Subtab 4c at 134; HT I at 22 (testimony of the 

appellant), 135 (testimony of the Branch Chief). 

¶7 The appellant testified that he took an unusual posture during the 

examination in order to relieve pain from a leg injury—not to look at the other 

trainee’s answer sheet. PFR File, Tab 4 at 28; HT I at 29-32, 42-43 (testimony of 

the appellant). The administrative judge did not find the appellant’s testimony 

persuasive for two reasons. First, she found that the appellant’s injury was not 

severe enough to cause him to be unable to sit still during a 20-minute 
5

examination. ID at 7. Second, she found that the appellant failed to raise this 

issue in response to the notice of proposed removal. ID at 7-8.

¶8 On review, the appellant argues that the administrative judge’s opinion of 

the severity of his injury was not grounded in reliable, objective medical 

evidence. PFR File, Tab 4 at 28. He argues that the administrative judge denied 

his request to call his doctor as a witness and that he did not object because the 

administrative judge advised him that she would allow him to submit a letter from 

his doctor in lieu of testimony. Id.; IAF, Tab 19, Witness List at 2, Tab 20 at 8, 

Tab 29 at 16; HT I at 4-5 (statement of the administrative judge). He further 

argues that he would have objected to this witness ruling had he known that the 

administrative judge would be so dismissive of the evidence proffered in lieu of 

the doctor’s testimony. PFR File, Tab 4 at 28.

¶9 As an initial matter, we find that the appellant did not avail himself of the 

administrative judge’s invitation to submit a note from his doctor reflecting what 

the doctor’s testimony would have been. Rather, he relied on medical evidence 

that was already in the record and showed generally that the appellant was 

experiencing discomfort from his injury, but did not specifically address the 

appellant’s ability to sit still during the examination at issue. IAF, Tab 17, 

Subtabs F, R, S, Tab 29 at 16-17, 20. In fact, the only medical evidence about the 

injury’s effect on the appellant’s ability to sit is a December 2, 2013 doctor’s note 

stating that “[t]he patient is sitting comfortably in the examination room . . . .” 

IAF, Tab 17, Subtab S at 4. Furthermore, we agree with the administrative judge 

that the appellant’s failure to raise this important issue with the deciding official 

casts doubt on the veracity of his claim. ID at 7-8. While the Board will consider 

an appellant’s evidence and arguments regardless of whether he raised them 

before the agency, see Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 610-11 

(1991) (rejecting the notion that the Board’s scope of review is limited to 

consideration of the administrative record established before the agency); Stewart 

v. Office of Personnel Management, 8 M.S.P.R. 289, 293 (1981) (concluding that 
6

the Board is both authorized and mandated to consider de novo all available 

relevant evidence), the Board may find them less credible when he raises them for 

the first time before the Board, see, e.g., Reynolds v. Department of Justice, 

63 M.S.P.R. 189, 195 (1994). For these reasons, we find no basis to disturb the 

administrative judge’s denial of the appellant’s doctor as a witness or her finding 

that the appellant’s injury did not cause him to have to turn during the 

examination.

¶10 The appellant also argues that the Branch Chief and the Staff Administrator 

did not give credible testimony of what they observed during the examination. 

Regarding the Branch Chief, the appellant argues that he has “credibility and 

integrity issues,” as evidenced by his past disciplinary record, including 

discipline for failure to report an “incident” to his supervisor in 1998 and for 

misuse of a government computer in 2002 or 2003. PFR File, Tab 4 at 18, 29. 

The appellant’s attorney attempted to question the Branch Chief about these

matters at the hearing, but the administrative judge sustained the agency’s 

objection to that line of questioning. Id. at 29; HT I at 165-66. The appellant 

argues that the administrative judge should have allowed testimony on these 

issues. PFR File, Tab 4 at 29. 

¶11 However, not all misconduct that an individual might commit has a bearing 

on his propensity for telling the truth. Cf. Eichner v. U.S. Postal Service, 

83 M.S.P.R. 202, ¶ 10 (1999) (because the appellant’s prior misconduct of 

disrupting operations, distracting employees, and disobeying orders did not 

involve his propensity for telling the truth, the administrative judge should not 

have considered it in determining the credibility of the appellant’s testimony). It 

is not apparent to us, and the appellant has not alleged, that the Branch Chief’s 

prior misconduct, which occurred approximately 10 to 15 years before the 

hearing, involved any sort of falsification or element of deception. Under these 

circumstances, we find that the administrative judge did not abuse her discretion 

in sustaining the agency’s objection to this line of questioning. See Sanders v. 
7

Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (an administrative 

judge has wide discretion to control the proceedings, including the authority to 

exclude testimony that she believes would be irrelevant, immaterial, or unduly 

repetitious); 5 C.F.R. § 1201.41(b)(3). Moreover, the appellant has not explained 

on petition for review what testimony he expected to elicit from the Branch Chief 

concerning that prior misconduct. Therefore, he has not shown that the 

administrative judge’s ruling prejudiced his substantive rights. See Walton v. 

Tennessee Valley Authority, 48 M.S.P.R. 462, 467 (1991); Karapinka v. 

Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s 

procedural error is of no legal consequence unless it is shown to have adversely 

affected a party’s substantive rights).

¶12 The appellant further argues that the Branch Chief’s testimony was not 

persuasive because he could not recall where the appellant’s and the other 

trainee’s test booklets were positioned on the desk or in which hand they held 

their pencils. PFR File, Tab 4 at 19; HT I at 190, 195 (testimony of the Branch 

Chief). In addition, the Branch Chief did not observe what the appellant was 

marking on his answer sheet. PFR File, Tab 4 at 19; HT I at 141 (testimony of 

the Branch Chief). We have considered these matters in evaluating the overall 

evidence regarding the charge, but we do not find it surprising that the Branch 

Chief was either unable to observe or unable to remember these details. We find 

that his failure to do so does not detract significantly from the persuasiveness of 

his testimony.

¶13 Regarding the Staff Administrator, the appellant argues that her own 

testimony shows that she did not see him cheat. PFR File, Tab 4 at 16, 29. In 

support of his argument, he cites the Staff Administrator’s hearing testimony as 

well as her contemporaneous written account of her observations. Id. at 16-17; 

IAF, Tab 5 at 73; HT I at 72-99. It appears that the appellant’s point is that the 

Staff Administrator did not see him mark his answer sheet after looking at the 

other trainee’s papers. PFR File, Tab 4 at 16-17. We agree with this assessment 
8

and we have considered it as part of our overall evaluation of the evidence. 

However, we think that it is an overstatement to say that the Staff Administrator 

testified that she did not see the appellant cheat. Although the Staff 

Administrator may not have observed the appellant mark his answer sheet after 

looking at the other trainee’s papers, she did observe the appellant looking at the 

other trainee’s papers, and this led her to believe that the appellant was cheating. 

HT I at 86-89 (testimony of the Staff Administrator); IAF, Tab 5 at 73.

¶14 The appellant further argues that the Branch Chief’s testimony and 

contemporaneous written statement contradict those of the Staff Administrator. 

PFR File, Tab 4 at 8, 19. Specifically, the Branch Chief stated that he saw the 

appellant cheat by looking at the other trainee’s answer sheet and marking his 

own, whereas the Staff Administrator stated that she did not see the appellant 

mark his answer sheet and did not see him cheat. Id.; IAF, Tab 5 at 71, 73; HT I 

at 99 (testimony of the Staff Administrator), 153-54 (testimony of the Branch 

Chief). Again, the appellant mischaracterizes the Staff Administrator’s 

testimony. The Staff Administrator stated that she believed that she observed the 

appellant cheating, HT I at 86-89 (testimony of the Staff Administrator); IAF, 

Tab 5 at 73, and we do not think that her failure to observe him marking his 

answer sheet equates to a nonobservance of cheating. In any event, we find that 

the statements of these two witnesses are not contradictory. Rather, they are 

consistent with one another. The Branch Chief merely observed details that the 

Staff Administrator did not, which is understandable, considering that he had a 

better vantage point to observe the appellant’s behavior during the examination, 

being seated closer to and facing him.

¶15 The appellant also argues that some of the language that the Branch Chief 

and Staff Administrator used in their testimony and written statements undercuts 

the conclusion that the appellant cheated on the examination. Specifically, he 

argues that the Branch Chief and the Staff Administrator stated that they observed 

the appellant “glance” at the other trainee’s paper and that a mere glance is not a 
9

violation of the agency’s cheating policy. PFR File, Tab 4 at 15, 18; IAF, Tab 5 

at 73; HT I at 84, 86 (testimony of the Staff Administrator), 138-41, 154, 157 

(testimony of the Branch Chief). He further argues that the Branch Chief and the 

Staff Administrator stated that the appellant “appeared” to be cheating, which is 

not the language that someone would use if he were convinced of what he saw. 

PFR File, Tab 4 at 19-20; IAF, Tab 5 at 73; HT I at 88 (testimony of the Staff 

Administrator). We are not persuaded by the appellant’s argument. Although a 

“glance” at another trainee’s materials may not be the same thing as cheating, 

twenty such “glances” during the course of a 20- or 25-minute examination is 

strongly indicative of cheating. As for the use of the word “appears,” we do not 

find this to be particularly significant.

¶16 Finally, the appellant notes that, for one of the questions that he and the 

other trainee missed, they supplied different answers. PFR File, Tab 4 at 19; IAF, 

Tab 5 at 75, Tab 6, Subtabs 4f-4g. We acknowledge that the appellant and the 

other trainee did not answer every question identically, and we have considered 

this fact in evaluating the evidence overall. They did, however, answer 49 of the 

50 questions identically, and the one that they did not answer identically, they 

both got wrong. Although the similarities between the answer sheets alone might 

not have been enough to prove that the appellant cheated, for the reasons 

explained in the initial decision, we agree with the administrative judge that the 

totality of the evidence, including the answer sheets and the testimony and 

contemporaneous written accounts of the Branch Chief and the Staff 

Administrator, were sufficient to show by preponderant evidence that the 

appellant cheated on the examination, thereby violating the Honor Code. ID at 

5-8.

The removal penalty promotes the efficiency of the service.

¶17 Where, as here, the agency’s charge is sustained, the Board will modify an 

agency-imposed penalty only when it finds that the deciding official failed to 

weigh the relevant penalty factors, or the penalty imposed exceeds the tolerable 
10

limits of reasonableness. Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15 

(2000); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Among 

the factors that the Board will consider are the nature and seriousness of the 

offense, and its relation to the employee’s duties, position, and responsibilities, 

the clarity with which the employee was on notice of any rules that were violated 

in committing the offense, or had been warned about the conduct in question, the 

employee’s potential for rehabilitation, and other mitigating circumstances that 

may have been present and contributed to the misconduct. Douglas, 5 M.S.P.R. 

at 305-06. The appellant challenges the penalty determination as follows.

¶18 First, he argues that he was not on sufficient notice of what the agency’s 

Honor Code requires because the agency “compelled [his] signature through 

direct orders.” PFR File, Tab 4 at 8, 26. He argues that the manner in which the 

agency secured his signature to the Honor Code was improper, he was never 

asked whether he had any questions about it, and he “should have been properly 

informed with sufficient opportunity . . . to have read understood and exercised 

[his] freedom of choice to be bound by such regulation.”5

 Id. at 9-13 

(punctuation as in the original). We find, however, that the appellant was put on 

fair notice of the Honor Code and its requirements. On his first day of training, 

the appellant received a copy of the Honor Code, was told to read it, and had it

explained to him. HT I at 17-18 (testimony of the appellant), 55 (testimony of the 

Program Manager). The agency also includes, as the first page of every written 

examination, a statement reminding special agent trainees of the Honor Code and 

its prohibition on cheating. Id. at 56-57 (testimony of the Program 

 5 The appellant contends that if the Board were to uphold the agency’s use of its Honor 

Code, this would have far reaching implications across the civil service. PFR File, Tab 

1 at 14. He urges the Board to issue a Federal Register notice affording the Office of 

Personnel Management (OPM) and any interested persons an opportunity to brief the 

issue before the Board renders a decision. Id. at 13-14. We disagree that our findings 

on this issue represent a shift in the law or otherwise have the potential for broad 

impact on the civil service, and we decline the appellant’s suggestion to call for amicus 

briefs or to seek an advisory opinion from OPM.
11

Administrator); IAF, Tab 5 at 69, 94-99. The appellant received and signed this 

statement on each of the seven examinations that he took, including the 

examination in question. IAF, Tab 5 at 69, 95-99; HT I at 55-56 (testimony of 

the Program Manager). Furthermore, we have reviewed the Honor Code, and we 

find nothing confusing about it. IAF, Tab 5 at 66-67. Nor has the appellant 

explained what exactly about the Honor Code he finds unclear. In any event, 

even in the absence of a cheating prohibition spelled out in the Honor Code, the 

appellant has a graduate level education and we do not believe that he fails to 

understand the gravity of cheating on an examination. IAF, Tab 17, Subtab D. 

Moreover, cheating on an examination is contrary to 5 C.F.R. § 735.203, which 

applies to the civil service generally, and provides that an employee shall not 

engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful 

conduct, or other conduct prejudicial to the Government. Lawley v. Department 

of the Treasury, 84 M.S.P.R. 253, ¶ 18 (1999).

¶19 Second, the appellant argues that the deciding official failed to consider his 

injury as a mitigating factor. PFR File, Tab 4 at 27. However, the appellant has 

not established a causal connection between his injury and the misconduct that 

would give us a basis to consider this as a mitigating factor. See Brown v. U.S. 

Postal Service, 64 M.S.P.R. 425, 434 (1994).

¶20 Third, the appellant argues that the deciding official failed to consider his 

potential for rehabilitation. PFR File, Tab 4 at 27. We agree with the appellant 

that the deciding official testified that he did not consider the appellant’s 

potential for rehabilitation. HT I at 296-97. It appears that the deciding official 

found that the appellant’s potential for rehabilitation was not especially relevant 

because, throughout his entire career, the offense would be subject to disclosure 

under Giglio v. United States, 405 U.S. 150 (1972). HT I at 296-97. 

Nevertheless, the deciding official also testified that he considered the evidence 

that the appellant identified as indicative of his rehabilitative potential, including 

his work history and letters of reference. Hearing Transcript, Volume II (HT II) 
12

at 26-27. The overall tenor of the deciding official’s testimony is that he found 

the appellant’s rehabilitative potential to be immaterial in light of the seriousness 

of the charge and the appellant’s compromised utility as a law enforcement 

officer. HT I at 296-97; HT II at 26-27. Therefore, notwithstanding the portions 

of the deciding official’s testimony that the appellant identifies on petition for 

review, our review of the deciding official’s testimony as a whole leads us to 

agree with the administrative judge that the deciding official considered and 

responsibly weighed the pertinent penalty factors. ID at 9-10.

¶21 Regarding the nature and seriousness of the offense and its relation to the 

appellant’s duties, position, and responsibilities, the Board has long held that 

offenses touching on honesty and integrity are especially serious when it comes to 

law enforcement officers, who are held to a higher standard of conduct to begin 

with. E.g., Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 16 (2003),

aff’d, 131 F. App’x 709 (Fed. Cir. 2005); Childs v. U.S. Postal Service, 

67 M.S.P.R. 348, 356 (1995); Austin v. Department of Justice, 11 M.S.P.R. 255, 

259 (1982). The Board places primary importance on this penalty factor. Jones 

v. Department of the Interior, 97 M.S.P.R. 282, ¶ 13 (2004). For the reasons 

explained in the initial decision, we agree with the administrative judge that the 

removal penalty does not exceed the tolerable limits of reasonableness, and that it 

promotes the efficiency of the service. ID at 10.

The appellant has not shown that the agency committed harmful procedural error.

¶22 To prove that the agency committed harmful procedural error under 

5 U.S.C. § 7701(c)(2)(A), the appellant must show both that the agency 

committed procedural error and that the error was harmful. Parker v. Defense 

Logistics Agency, 1 M.S.P.R. 505, 513 (1980). He must prove that any 

procedural errors by the agency prejudiced his substantive rights by possibly 

affecting the agency’s decision; harmful error cannot be presumed. Stephen v. 

Department of the Air Force, 47 M.S.P.R. 672, 681 (1991).
13

¶23 The appellant argues that the agency failed to launch an adequate and 

competent investigation by the Office of Internal Affairs “pursuant to standing 

Agency policy, directives and manual orders” and that this resulted in the 

removal decision being based on “speculation and conjecture.” PFR File, Tab 4 

at 1. The administrative judge addressed this argument at length below, and he 

found that the agency committed no procedural error and that the appellant failed 

to show that the investigation that he desired might have changed the outcome of 

the case. ID at 12-14. There is no apparent error in the administrative judge’s 

analysis and we find that the appellant’s argument constitutes mere disagreement 

with it. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)

(mere disagreement with the administrative judge’s findings and credibility

determinations does not warrant full review of the record by the Board).

¶24 The appellant also argues that the agency had no procedures to deal with 

allegations of cheating but instead, in violation of Bureau of Alcohol, Tobacco, 

Firearms and Explosives Manual Order 2140.1, created an ad hoc procedure to 

address his particular situation. PFR File, Tab 4 at 21; IAF, Tab 17, Subtab W. 

However, we are aware of no law, rule, or regulation, requiring agencies to have a

separate established protocol for addressing every conceivable category of 

misconduct. Nor has the appellant explained what these alleged ad hoc 

procedures were or how they were inconsistent with the procedures in Manual 

Order 2140.1 or any other statutory or regulatory procedures generally applicable 

to addressing employee misconduct. Therefore, the appellant has not shown that 

the agency committed any procedural error in this regard or that any such 

procedural error was harmful. See Helms v. Department of the Army, 

114 M.S.P.R. 447, ¶ 7 (2010).

The appellant has not shown that the agency violated his due process rights.

¶25 An agency’s failure to provide a tenured public employee with an 

opportunity to present a response, either in person or in writing, to an appealable 

agency action that deprives him of his property right in his employment 
14

constitutes an abridgement of his constitutional right to minimum due process of 

law, i.e., prior notice and an opportunity to respond. Cleveland Board of 

Education v. Loudermill, 470 U.S. 532, 546 (1985).

¶26 On review, the appellant argues that the deciding official was aware of the 

appellant’s case before it came to him in his capacity as deciding official and that 

he was already predisposed to decide against the appellant. PFR File, Tab 4 at 

22. However, it is well-established that a deciding official’s awareness of 

background information concerning the appellant, his concurrence in the 

desirably to take an adverse action, or his predisposition to impose a severe 

penalty does not disqualify him from serving as a deciding official on due process 

grounds. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 7-8

(2012). There is no general proscription of the appointment as a deciding official 

of a person who is familiar with the facts of the case and who has expressed a 

predisposition contrary to the appellant’s interests. Svejda v. Department of the 

Interior, 7 M.S.P.R. 108, 111 (1981).

¶27 The appellant also argues that the deciding official considered “facts not in 

evidence” in reaching his decision. PFR File, Tab 4 at 23-25, 30. We have 

reviewed the appellant’s argument and it appears that he is not alleging that the 

deciding official considered any ex parte communications or evidence to which 

the appellant was not privy. Rather, he disagrees with the deciding official’s 

characterization of that evidence at the hearing. Id. at 23-25. We find that the 

appellant has not established a violation of his due process rights.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 
15

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

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

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is 

contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 
16

If you are interested in securing pro bono representation for an appeal to 

the United States Court of Appeals for the Federal Circuit, you may visit our 

website at http://www.mspb.gov/probono for a list of attorneys who have 

expressed interest in providing pro bono representation for Merit Systems 

Protection Board appellants before the Federal Circuit. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board