NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JUAN M. GOMEZ-RODRIGUEZ,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2022-1187

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-21-0264-I-1.

______________________ 

Decided: May 24, 2023

______________________ 

STEPHAN B. CALDWELL, Stephen B. Caldwell, LLC, Suwanee, GA, argued for petitioner. 

 SEAN KELLY GRIFFIN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY. 

 ______________________ 

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2 GOMEZ-RODRIGUEZ v. ARMY

Before MOORE, Chief Judge, PROST and STARK, Circuit 

Judges.

STARK, Circuit Judge. 

Juan M. Gomez-Rodriguez petitions for review of the 

Merit Systems Protection Board’s (“Board”) decision affirming his removal as a Department of the Army Civilian 

Police (“DACP”) officer in the Army’s Installation Command, Directorate of Emergency Services (“DES”) at Fort 

Gordon, Georgia. We affirm.

I 

As a DACP officer, Gomez-Rodriguez had access to 

ALERTS, the Army Law Enforcement and Reporting 

Tracking System. ALERTS is a database of police investigations and incidents designed for official use only.

As a condition of employment, Gomez-Rodriguez was

required to maintain certification in the Individual Reliability Program (“IRP”). The IRP obligates police officers to

“maintain a high standard of conduct at all times” and be 

continuously evaluated in terms of their “character, trustworthiness, and fitness” to ensure they meet “the high 

standards expected of law enforcement.” J.A. 348 (Army 

Regulation (“AR”) 190-56 ¶¶ 3-3.a. and b). 

As we will explain, the Army removed Gomez-Rodriguez based on his misuse of ALERTS and his failure to 

maintain his IRP certification.

Several investigations preceded Gomez-Rodriguez’s removal. First, pursuant to AR 15-6, the Army investigated 

an allegation that Gomez-Rodriguez had improperly used 

ALERTS to obtain information about an alleged crime committed by another officer, Michael Porreca (“AR 15-6 Investigation”). The AR 15-6 Investigation revealed that GomezRodriguez had searched for “Porreca” in ALERTS and accessed a file naming Porreca as a suspect in a larceny 

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investigation. The Army also discovered that Gomez-Rodriguez had searched in ALERTS for information on another police officer, Cory Burgess. 

Second, the Defense Criminal Investigative Service 

(“DCIS”) investigated the time and attendance practices of 

multiple Fort Gordon DES police officers, including GomezRodriguez (“DCIS Investigation”). The DCIS Investigation

revealed discrepancies in the time and attendance records 

of Gomez-Rodriguez and other officers. 

Consequently, on August 19, 2020, the DES Deputy Director sent a memorandum to Gomez-Rodriguez concerning his IRP certification. The Deputy Director stated that, 

in light of the AR 15-6 and DCIS Investigations, he was 

offering Gomez-Rodriguez an opportunity to provide input 

regarding whether he could continue to retain his IRP certification. On August 28, 2020, Gomez-Rodriguez’s union, 

the American Federation of Government Employees, responded with additional information supporting his IRP 

certification. 

On October 19, 2020, the Military Police Director and 

Provost Marshal notified Gomez-Rodriguez via memorandum that he was being permanently decertified from the 

IRP because he lacked the “character, trustworthiness, and 

fitness . . . consistent with the high standards expected of 

law enforcement and security professionals.” J.A. 60 (citing AR 190-56 ¶ 3-3.b). The memorandum referenced the 

AR 15-6 and DCIS Investigations, as well as an incident 

that had occurred at Pointes West Army Resort, where 

Gomez-Rodriguez had been found in possession of a personally owned firearm without the required written permission. Gomez-Rodriguez had not been disciplined for the 

Pointes West incident. 

Also on October 19, 2020, the Deputy Director issued a 

notice of proposed removal based on two charges: (1) conduct unbecoming a law enforcement officer and (2) failure 

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4 GOMEZ-RODRIGUEZ v. ARMY

to maintain a condition of employment. The specification 

supporting the first charge stated that Gomez-Rodriguez 

had improperly searched for Porreca and Burgess in 

ALERTS without an official purpose or authorization. The 

specification supporting the second charge alleged that 

Gomez-Rodriguez had failed to maintain his IRP certification, yet maintenance of such certification was a condition 

of his employment. In the proposed removal, the Deputy 

Director explained that he had considered the AR 15-6 and 

DCIS Investigations, the permanent IRP decertification, 

and the firearm incident at Pointes West Army Resort. On 

October 29, 2020, Gomez-Rodriguez submitted a written 

response and, through his union representative, an oral response to the notice of proposed removal. 

On February 4, 2021, the deciding official issued a decision sustaining the two charges and finding the penalty 

of removal to be adequate and appropriate. On February 

10, 2021, Gomez-Rodriguez was removed from his position. 

On March 3, 2021, he appealed to the Board. 

At the Board, an administrative judge (“AJ”) held a 

hearing. Gomez-Rodriguez was among the witnesses who 

appeared at the hearing. He testified that his ALERTS 

searches were authorized because they occurred in connection with DUI training he was receiving from Porreca, in 

the course of which Porreca told the class to search for sample DUI reports Porreca had written. According to GomezRodriguez, his ALERTS search for Burgess was motivated 

by his desire to understand “his style of writing,” as Burgess was his supervisor and would be “reviewing my cases.” 

J.A. 486.

Another witness, Deputy Chief William Russ, testified, 

however, that the manner in which Gomez-Rodriguez undertook the searches would produce reports related to the 

criminal investigations of his fellow officers, Porreca and 

Burgess, rather than to yield reports written by them. The 

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GOMEZ-RODRIGUEZ v. ARMY 5

Board credited Russ’ testimony over that of Gomez-Rodriguez and, thus, found that Gomez-Rodriguez had improperly used ALERTS. 

The Board also concluded that maintenance of IRP certification was a condition of Gomez-Rodriguez’s employment and that his decertification was justified based on 

information from the AR 15-6 and DCIS Investigations as 

well as the Pointes West Army Resort firearm incident. 

The Board rejected Gomez-Rodriguez’s contention that the 

Army had deprived him of due process by considering the 

DCIS Investigation, finding that the notice of proposed removal had adequately informed him that this investigation 

had identified significant negligence in his time and attendance records. 

Ultimately, the Board found a nexus between the 

grounds for removal and a legitimate governmental interest in efficiency of the service, and further found that removal was reasonable based on the evidence, despite 

Gomez-Rodriguez’s work record, length of service, previous 

performance, and lack of disciplinary history. The Board’s 

initial decision, issued by the AJ on September 24, 2021, 

became final on October 29, 2021. On November 22, 2021, 

Gomez-Rodriguez timely appealed to this Court. We have 

jurisdiction under 5 U.S.C. § 7703(b)(1)(A).

II

In reviewing the record and the Board’s decision, we 

must “hold unlawful and set aside any agency action, findings, or conclusions found to be – (1) arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, rule, 

or regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c).

On appeal, Gomez-Rodriguez argues (1) substantial evidence does not support either charge against him; (2) the 

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6 GOMEZ-RODRIGUEZ v. ARMY

Board did not apply the law for disparate penalties; and (3) 

he was denied due process.1 We address each contention 

in turn.

A 

Gomez-Rodriguez was charged with conduct unbecoming a law enforcement officer and failure to maintain a condition of employment. “[W]hen an agency uses such 

general charging language, the Board must look to the 

specification to determine what conduct the agency is relying on as the basis for its proposed disciplinary action.” 

Russo v. U.S. Postal Serv., 284 F.3d 1304, 1308 (Fed. Cir. 

2002). Here, the specifications supporting the charges explained in detail that (1) Gomez-Rodriguez improperly 

searched for Porreca and Burgess in ALERTS without an 

official purpose or authorization, and (2) Gomez-Rodriguez 

was permanently decertified from the IRP, yet maintenance of such certification was a condition of his employment. Based on the evidence presented, which largely 

consisted of the testimony of Deputy Chief Russ and 

Gomez-Rodriguez, the Board determined that Gomez-Rodriguez’s ALERTS searches for Porreca and Burgess were 

improper because they were unauthorized and not for an 

official purpose. The Board further found that IRP certification was a condition of Gomez-Rodriguez’s employment, 

so his permanent IRP decertification barred his continued

employment. 

1 Gomez-Rodriguez had also argued to the Board 

that the Army discriminated against him based on race and 

nationality, but these issues are not before us because he 

did not raise them on appeal. See generally Toyama v. 

Merit Sys. Prot. Bd., 481 F.3d 1361, 1365 (Fed. Cir. 2007) 

(noting that appeals from Board to this court are available 

where appellant is “willing to waive discrimination issues”); 5 U.S.C. § 7703(b)(2). 

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Substantial evidence, which is “such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion,” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 

(2019), supports the Board’s determinations that both 

charges against Gomez-Rodriguez were proven by the requisite preponderance of the evidence. “[T]he possibility of 

drawing two inconsistent conclusions from the evidence 

does not prevent an administrative agency’s finding from 

being supported by substantial evidence.” Consolo v. Fed. 

Mar. Comm’n, 383 U.S. 607, 620 (1966).

Both Deputy Chief Russ and Gomez-Rodriguez testified before the AJ about the ALERTS searches Gomez-Rodriguez performed. According to Russ, the way in which 

Gomez-Rodriguez conducted the searches would not have 

resulted in reports authored by other officers, for example 

Porreca, but instead “would only bring up their criminal 

history.” J.A. 444. Gomez-Rodriguez gave the AJ a different account, insisting he was only looking for reports written by, and not about, Porreca and Burgess. J.A. 476. The 

state of the record called upon the AJ to make a credibility 

finding, and she did so, explaining that Russ – who “helped 

develop the [ALERTS] program” and was “knowledgeable 

of the database” – was “straightforward and direct in his 

testimony” and exhibited a “demeanor throughout [that] 

was confident and assured,” while, “[i]n contrast,” GomezRodriguez’s testimony was “less than forthright” and left

“the impression that he would say whatever is necessary to 

save his position.” J.A. 15.

While the AJ could have credited Gomez-Rodriguez’s 

testimony and found for him, she was likewise free to credit 

the contrary evidence and find against him. See King v. 

Dep’t of Health & Hum. Servs., 133 F.3d 1450, 1453 (Fed. 

Cir. 1998). We will not disturb such credibility determinations where, as here, they are not “inherently improbable

or discredited by undisputed evidence or physical fact.” 

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8 GOMEZ-RODRIGUEZ v. ARMY

Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 

1987).

It is true, as Gomez-Rodriguez emphasizes, that Porreca acknowledged he had told Gomez-Rodriguez (and 

other members of his DUI class) to use Porreca’s name to 

search ALERTS. This does not, however, undermine the 

AJ’s finding that the details of Gomez-Rodriguez’s particular searches show he was searching in a manner distinct 

from what Porreca had directed. The AJ credited Deputy 

Chief Russ’ testimony about the specifics of Gomez-Rodriguez’s searches, including that he had searched “Porreca” 

three times, and rejected Gomez-Rodriguez’s competing account. The AJ’s credibility determination and Russ’ testimony constitute substantial evidence for the finding that 

Gomez-Rodriguez’s searches were improper and unauthorized.

Gomez-Rodriguez also argues there were no standard 

procedures concerning authorized or unauthorized 

ALERTS usage at Fort Gordon. While the record shows 

that the standards were clarified in the course of the investigations and audits relating to this case, see, e.g., J.A. 83 

(June 2021 Memo stating: “Unauthorized usage of 

ALERTS is exceeding access by reviewing information that 

you do not have a need to know about and providing information to others without a need to know, or an official purpose.”), the impropriety of Gomez-Rodriguez’s conduct was

already sufficiently clear at the time he undertook his 

searches. For example, at that time, Gomez-Rodriguez was 

subject to limitations described in the Guidelines from the 

Office of the Provost Marshal General relating to AR 190-

45, which provided (among other things): “Unauthorized 

use, which includes requests, dissemination, sharing, copying or receipt of information within . . . ALERTS, could 

result in civil proceedings against . . . any user . . . . Violations or misuse may also subject the user . . . to administrative sanctions and possible disciplinary action by their 

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GOMEZ-RODRIGUEZ v. ARMY 9

command . . . .” Suppl. App. 1. Additionally, each ALERTS 

user saw one or more screens notifying the user that 

ALERTS is to be used only for official use on a need-toknow basis, with due consideration for sensitive and personal information. J.A. 111, 113, 630-31; see also J.A. 442-

43 (Deputy Chief Russ testifying that “[o]n the original 

screen, before you log into Alerts it lists that this is for official use only, law enforcement”). Investigator Jack Frost 

and Deputy Chief Russ also testified that official use of 

ALERTS meant “for law enforcement purposes.” J.A. 436; 

see J.A. 432 (“[I]t was . . . unofficial, which means it was 

unauthorized.”) (ellipses in original), 434 (“The authorized 

use comes from a need to know, and you know, not using it 

for personal . . . use.”) (ellipses in original); see also J.A. 466 

(Hugh Hardin, deciding official, testifying that “accessing 

of the ALERTS database without an official law enforcement purpose did constitute an unauthorized, inappropriate use of the system”).

With respect to the IRP certification charge, it is undisputed that maintaining IRP certification was a condition of 

Gomez-Rodriguez’s employment. Gomez-Rodriguez also 

does not dispute that he was decertified. Plainly, then, 

substantial evidence supports the Board’s decision to sustain the Army’s finding on the second charge. 

Therefore, we conclude that substantial evidence supports the Board’s findings sustaining both charges brought 

against Gomez-Rodriguez. 

B 

Gomez-Rodriguez has not shown that the Board erred 

in its application, or non-application, of the law concerning 

disparate penalties and comparators.

The relevant Douglas factor is the “consistency of the 

penalty with those imposed upon other employees for the 

same or similar offences.” Douglas v. Veterans Admin., 5 

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10 GOMEZ-RODRIGUEZ v. ARMY

M.S.P.B. 313, 332 (1981). As part of a challenge to the reasonableness of a penalty, an employee looking “[t]o establish disparate penalties” “must show that the charges and 

circumstances surrounding the charged behavior [of himself] are substantially similar [to those of others], which includes proof that the proffered comparator . . . was 

subjected to the same standards governing discipline.” 

Miskill v. Soc. Sec. Admin., 863 F.3d 1379, 1384 (Fed. Cir. 

2017) (internal quotation marks omitted). Evaluation of a 

disparate penalties contention entails, “by [its] nature, a 

case-dependent, highly factual inquiry . . . not amenable to 

bright-line rules.” Id.

Gomez-Rodriguez’s disparate penalties argument fails, 

first, because it is forfeited. At no point before the Board 

did Gomez-Rodriguez contend that specific Army employees conducted unauthorized ALERTS searches and the 

Army then treated these similarly situated employees 

more leniently, thereby rendering the removal of GomezRodriguez unreasonable in light of the Douglas factors.

To avoid forfeiture and be available for appellate review, an issue first “must be raised with sufficient specificity and clarity that the tribunal [being reviewed] [wa]s 

aware that it must decide the issue.” Wallace v. Dep’t of 

the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989). Having 

reviewed the record citations to which Gomez-Rodriguez 

directs us, see Appellant’s Supp. Br. at 2, we find no instance in which he put the Board on notice that he was

challenging the reasonableness of the penalty of removal 

on the basis that it was inconsistent with discipline imposed on others for similar misconduct.

Shortly before the hearing, Gomez-Rodriguez filed a 

motion to put before the Board the Army’s June 9, 2021 

Memorandum (“June 2021 Memo”) entitled, “Findings and 

Recommendations for Army Regulation (AR) 15-6 Investigation – Alleged Improper Usage of Army Law 

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GOMEZ-RODRIGUEZ v. ARMY 11

Enforcement Reporting and Tracking System,” which was 

based on audits undertaken in November 2020 and May 

2021. J.A. 66, 80-85. So the Board had in its record the

June 2021 Memo, which reports that the audit found (in 

addition to Gomez-Rodriguez’s searches) 11 instances over 

a three-year period in which a total of five DES officers 

searched ALERTS for data on other DES employees. J.A. 

80-85. The June 2021 Memo does not show what discipline, 

if any, these other officers received, but it does recommend 

one of them for “administrative action.” J.A. 85.2

Even assuming that Gomez-Rodriguez’s motion was intended to put the Board on notice that he was making a 

disparate penalties argument,3 it is easy to understand 

2 While the June 2021 Memo was prepared too late 

to be considered by the deciding official, Hardin, at the time 

he ordered the removal of Gomez-Rodriguez in February 

2021, Gomez-Rodriguez was free to ask the Board to consider it in weighing the Douglas factors. See Norris v. Sec. 

& Exch. Comm’n, 675 F.3d 1349, 1357 (Fed. Cir. 2012). As 

we explain, however, he failed to raise the issue with sufficient specificity and clarity to make the Board aware it was 

an issue it needed to decide. See Wallace, 879 F.2d at 832. 

3 Gomez-Rodriguez’s motion to add the June 2021 

Memo to the AJ hearing record refers to a “Union Exhibit 

C” – which the parties do not appear to have included in 

their joint appendix – which he describes as “the Audit report of all users that accessed Officer Porreca’s name and 

other names.” J.A. 67. This is likely a November 2020 list 

prepared by Deputy Chief Russ identifying all the officers 

who searched ALERTS for the names of DES employees, 

which served as the starting point for the further investigation that resulted in the June 2021 Memo. See Appellant’s Br. at 10 (“The May 12, 2021 Audit served to clarify 

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12 GOMEZ-RODRIGUEZ v. ARMY

the November 16, 2020 Audit.”). Gomez-Rodriguez’s motion then suggests that the June 2021 Memo “contains relevant information and gives context to Union Exhibit C,” 

adding: 

Under the Douglas[] factors that the Agency 

did not consider, it goes to the Clarity of Notice that the Appellant was on as to what defines Routine use. Further, it explains 

penalties to those interviewed for a proper 

comparator analysis. This new Report [i.e., 

the June 2021 Memo] gives context to those 

names to properly make a comparator analysis like New AR-15 Findings. 

J.A. 67 (internal emphasis omitted). Later the motion 

states:

Here, the Union has introduced Exhibit C, an 

Audit of all those police officers in DES at 

For[t] Gordon that accessed Officer Porreca’s 

name. The Audit by itself does not allow this 

Court to make proper comparisons for 

d[i]sp[a]rate discipline as the Appellant has 

raised as a defense. This new AR-15 Report 

presents findings and interviews of those that 

accessed Officer Porreca’s name, their reasons, and if they have been disciplined for 

that action. Without this Report, this Court 

cannot properly give context around to the 

names listed in Union Exhibit C to make the 

proper comparator analysis for a decision.

J.A. 69. Despite the motion’s references to a “proper comparator analysis,” neither in the motion nor anywhere else 

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how the Board could have missed it. The motion identifies 

by name only one other officer, Elvis Rondon, J.A. 67-68, 

who the June 2021 Memo reports “searched his supervisor’s name in ALERTS to find narrative statements as part 

of his official duties.” J.A. 83. The report does not state or 

even suggest that Rondon’s search was inconsistent with 

his supervisor’s instructions, making it difficult (if even 

possible) to discern that Gomez-Rodriguez believed Rondon 

was a proper comparator.

During the Board hearing before the AJ, counsel for 

Gomez-Rodriguez examined the deciding official, Hugh 

Hardin, on the issue of comparators. Hardin was asked 

whether, assuming hypothetically he had been presented 

comparators, he would have considered them in deciding 

how to discipline Gomez-Rodriguez, to which Hardin said 

he would. J.A. 469. Hardin further explained the reality 

that Gomez-Rodriguez “was the only one that was presented to me for conduct unbecoming with the underlying 

action of searching ALERTS inappropriately in an unauthorized manner.” Id. Counsel for Gomez-Rodriguez also 

questioned his own client about comparators. J.A. 483. 

Gomez-Rodriguez interpreted the November 2020 audit as 

identifying 14 officers who had conducted ALERTS 

searches just as he had, and yet, to his knowledge, none of 

them “faced discipline or removal.” Id. There is, however, 

no documentary support in the record for these contentions

and Gomez-Rodriguez never used his (or any other) testimony to develop an argument. 

Given Gomez-Rodriguez’s failure to articulate his 

Douglas comparator argument with any clarity, the Army 

did Gomez-Rodriguez clearly identify the purportedly 

proper comparators, state that they were treated differently from himself, or ask the Board to determine he was 

subjected to a disparate penalty. 

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was never alerted to the prospect that it needed to develop 

a record with respect to the purported comparators. As a 

result, the Board was not provided by either party with the 

evidence on which such a highly fact-specific issue needs to 

be decided. And, again, the Board was not made aware by 

Gomez-Rodriguez that it had to decide the Douglas comparator issue to resolve this case. Accordingly, Gomez-Rodriguez forfeited the comparator contention he seeks to 

press on appeal. 

In any event, even if Gomez-Rodriguez had adequately 

presented the Douglas comparator issue to the Board, we 

would still affirm. As an initial matter, the Board did not 

completely overlook the evidence of the other 11 searches 

of DES employee names in ALERTS. Instead, the Board 

expressly referenced Deputy Chief Russ’ testimony that 

“he was asked to audit ALERTS for searches by officers, 

that the audit covered three years’ worth of searches, and 

that the audit revealed additional officers had conducted 

name searches of individuals [working] in DES.” J.A. 23. 

While the Board did not go on to address this evidence in 

connection with its Douglas analysis,4 we will not presume 

that the Board entirely failed to consider the comparator 

evidence. See Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 

906 (Fed. Cir. 1986) (“We presume that a fact finder reviews all the evidence presented unless [it] explicitly expresses otherwise.”). 

More importantly, Gomez-Rodriguez has failed to persuade us that his comparator evidence supports a 

4 Gomez-Rodriguez’s contentions regarding unequal 

treatment largely went to his race and nationality discrimination claims, which the Board did explicitly address, and 

the rejection of which is not before us on appeal. J.A. 23-

24.

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conclusion that his removal was unreasonable. As already 

noted, Gomez-Rodriguez did not present sufficient evidence of what (if any) discipline was imposed on other employees for the same or similar offenses he committed. 

There was no evidence before the Board that others who 

conducted unauthorized ALERTS searches received less 

harsh penalties.

Moreover, the only evidence Gomez-Rodriguez points 

to, the June 2021 Memo, explains that five other officers 

conducted ALERTS searches on DES employees, and of 

them only one – Officer Hockenbery – was even arguably 

similarly situated, and that officer was recommended for 

administrative action. J.A. 82-85. The other four officers

were either instructed by a superior to conduct the search

in question (Keim) or did the searches as part of their official duties (Darby, Peloquin, Rondon). Id.; see also J.A. 74 

(Army approving investigating officer’s findings and referring for further consideration the question of “what, if any, 

disciplinary action is appropriate for Sergeant Rory Keim 

and Sergeant Scott Hockenberry”). In short, Gomez-Rodriguez has not shown that any similarly-situated officer (i.e., 

one who conducted an unauthorized ALERTS search) was 

treated differently (i.e., less harshly) than him. See 

Miskill, 863 F.3d at 1384 (“To establish disparate penalties, the employee must show that the charges and circumstances surrounding the charged behavior are 

substantially similar.”).5 

5 We note that if Gomez-Rodriguez had presented 

the issue with sufficient specificity, and if the record had 

shown similarly situated employees who were potentially 

treated less harshly, the burden would then have shifted to 

the agency to “prove a legitimate reason for the difference 

in treatment by a preponderance of the evidence.” Miskill, 

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Thus, again, we affirm the Board’s finding that the 

penalty of removal was reasonable.

C 

Gomez-Rodriguez has also failed to show that he was 

denied due process. He argues that the Army’s notice of 

proposed removal and its decision to remove him did not

inform him that the IRP memorandum was the basis of the 

charge. He further contends that the Board improperly relied on the specification in the first charge (improper 

ALERTS usage) to sustain the second charge (IRP decertification).

To meet the requirements of due process, Gomez-Rodriguez had to be provided notice and an opportunity to be 

heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 

532, 546 (1985); see also 5 U.S.C. § 7513(b) (setting out statutory requirements of notice and opportunity to be heard). 

Notice requires provision of sufficient detail so an employee 

may provide an informed response. See, e.g., LaChance v. 

Merit Sys. Prot. Bd., 147 F.3d 1367, 1371 (Fed. Cir. 1998).

Due process was satisfied here. The notice of proposed 

removal outlined the two charges, along with their respective specifications (improper ALERTS usage and IRP decertification). The notice referenced the DCIS 

Investigation and the Pointes West Army Resort incident, 

although it did not identify them as bases for removal. The 

notice identified the IRP certification requirement and that 

Gomez-Rodriguez was decertified. Gomez-Rodriguez was 

given the opportunity to respond to the charges in the notice, and he did so.

863 F.3d at 1384. Here, because of Gomez-Rodriguez’s failings the burden did not shift to the Army. 

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Nor was there any improper reliance by the Board on 

the first charge in deciding to sustain the second charge. 

The substance of the Board’s findings on both charges 

tracked how the charges were made in the notice of proposed removal. The two charges were related – that is, at 

least part of the reason Gomez-Rodriguez lost his IRP certification was due to his ALERTS searches – and the deciding officer candidly acknowledged that had GomezRodriguez not improperly accessed ALERTS, the second 

charge would likely not have been applicable. J.A. 472. 

But none of this provides the basis for a meritorious due 

process claim.

In sum, Gomez-Rodriguez was notified of the Army’s 

reasons for its proposed actions and had an opportunity to 

respond. “Those are the limits of our review.” Adams v. 

Dep’t of Def., 688 F.3d 1330, 1334 (Fed. Cir. 2012).

III

We have considered Gomez-Rodriguez’s additional arguments and find them unpersuasive. For the foregoing 

reasons, we affirm.

AFFIRMED

COSTS

No costs.

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