N OTE : This disposition is nonprecedential.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

______________________
S TEPHAN B. C ALDWELL , Stephen B. Caldwell, LLC, S uwanee, GA, argued for petitioner.

S EAN K ELLY G RIFFIN , Commercial Litigation Branch,Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by B RIAN M. B OYNTON , C LAUDIA B URKE , P ATRICIA M. M C C ARTHY

.

______________________ Case: 22-1187 Document: 99 Page: 1 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 2

Before M OORE , Chief Judge

, P ROST and S TARK , Circuit Judges

. S TARK , 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 CivilianPolice (“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 ha d access to ALERTS, the Army Law Enforcement and ReportingTracking 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 (“IR P”)

. The IRP obligates police officers to “maintain a high standard of conduct at all times” and becontinuously evaluated in terms of their “character, trustworthiness, and fitness” to ensure they meet “the high
st andards expected of law enforcement.” J.A. 348 ( Army Regulation (“AR”) 190

- 56 ¶¶ 3

- 3.a. and b ). As we will explain, t he 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 us ed ALERTS to obtain information about an alleged crime committed by another officer

, Michael P orreca (“AR 15

- 6 Investigation”). Th e AR 15

- 6 Investigation r evealed that Gomez

Rodriguez had searched for “Porreca” in ALERTS and access ed a file naming Porreca as a suspect in a larceny Case: 22-1187 Document: 99 Page: 2 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 3

investigation. The Army also discovered that Gomez

- Rodriguez had s earched 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 Gomez

Rodriguez ( “DCIS Investigation”)

. Th e 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 memo randum 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 inputregarding 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 infor mation supporting his IRP certification. On October 19, 2020, the Military Police Director and Provost Marshal notified Gomez

- Rodri guez 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 wri tten per mission. Gomez

- Rodriguez had not been disciplined for the Pointes West incident.
Also on October 19, 2020, the Deputy Director issued anotice of proposed removal based on two charges: (1) conduct unbecoming a law enforcement officer and (2) fai lure Case: 22-1187 Document: 99 Page: 3 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 4

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 alleg ed 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 an d 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, 20 21, he appealed to the Board. At the Board, an administrative judge (“AJ”) held a hearing. Gomez- Rodriguez was a mong the witnesses who appeared at the hearing

. He testified that his ALERTSsearches 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 Gomez

Rodriguez, his ALERTS search for Burgess was motivatedby his desire to understand “his style of writing,” as Burgess was his supervisor and would be “reviewing my cases.” J.A. 486.

A nother 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 Case: 22-1187 Document: 99 Page: 4 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 5

Board credited Russ’ testimony over that of Gomez- Rodriguez and, thus, found that Gomez

- Rodrigue z 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 informati on 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 not ice of proposed removal had adequately informed him that th is investigation had identified significant negligence in his time and attendance records. Ultimately, the Board found a nexus between thegrounds for removal and a legitimate governmental intere st 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, issue d 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 b y law, rule, or regulation having been fo llowed; 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 Case: 22-1187 Document: 99 Page: 5 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 6

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 thespecification to determine what conduct the agency is relyin g 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 specification s supporting the charges explained in detail that (1) Gomez

- Rodriguez improperly searched for Porreca and Bu rgess in ALERTS without an official purpose or authorization

, and (2) Gomez

- Rodriguez
was p ermanently decertified from the IRP, yet maintena nce of such certifi cation was a condition of his employment. Based on the evidence presented, which largely consist ed 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 anofficial 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 availablewhere appellant is “willing to waive discrimination issues”) ; 5 U.S.C. § 7703(b)(2)

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- RODRIGUEZ v. ARMY 7

Substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a concl usion,” Biestek v. Berryhill , 139 S. Ct. 1148, 1154 (2019), supports the Board’s determinations that both charges against Gomez

- Rodriguez were proven by the requ isite preponderance of the evidence

. “[T]he possibility of drawing two inconsistent conclusion s 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 an d 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. 4 44

. 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 “strai ghtforward and direct in his testimony” and exhibited a “demeanor throughout [that] was confident and assured,” while, “[i]n contrast,” Gomez

Rodriguez’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 (Fe d. 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.” Case: 22-1187 Document: 99 Page: 7 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 8

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 Porre ca’s name to search ALERTS. This does not, however, undermine the AJ’s finding that the details of Gomez- Rodriguez’s particular search es 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 showsthat 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, a t 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 provide d (among other things) : “ Unauthorizeduse, 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 Case: 22-1187 Document: 99 Page: 8 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 9

command . . . .” S uppl. App. 1. Additionally, each ALERTS

user saw one or more screen s notifying the user that ALERTS is to be us ed only for official use on a need

- to

know basis

, with due considerat ion for sensitive and personal information. J.A. 111, 113, 6 30

- 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 p urposes.” J.A. 436 ;

see J.A. 4 32 (“[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, decidi ng official, testifying that “accessingof 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 IR P certification was a co ndition 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

. Th erefore , 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 Case: 22-1187 Document: 99 Page: 9 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 10

M.S.P. B

. 313 , 3 32 (1981). As part of a challenge to the reasonableness of a penalty, an employee looking “ [t] o establish disparate penalties” “m ust 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) . Evaluat ion of a disparate penalties contention entail s , “ 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

- Rodr iguez contend that specific Army employees conducted unauthorized ALERTS searches and the Army then treat ed these similarly situated employees more leniently, thereby rendering the removal of Gomez

Rodriguez unreasonable in light of the Douglas factors.

To avoid forfeiture and be available for appellate revi ew, 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

- Rodri guez 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 remov alon the basis that it was inconsistent with discipline imposed on others for similar misconduct. Shortly before the hearing, Gomez- Rodri guez 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 Case: 22-1187 Document: 99 Page: 10 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 11

Enforcement Reporting and Tracking System,” which was based on audit s undertaken in November 2020 and May 2021. J.A. 66, 80

- 85

. So the Board had in its r ecord the June 2021 Memo , which reports tha t 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 employee s. J.A. 80

- 85. The June 202 1 Mem o does not show what discipline

, if any , these other officers received, but it does recommen d one of them for “ administrative action .” J.A. 85. 2 Even assuming tha t 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 order ed the removal of Gomez -R odriguez in February 2021, Gomez- Rodriguez was free to ask the Board to consider it in weighing the Douglas factors. See Norris v. S ec. & Exch. Comm’n , 675 F.3d 1349, 1357 (Fed. Cir. 2012). Aswe explain, however, he failed to raise the issue with suffic ient 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 20 21 Memo. See Appellant’s Br. at 10 (“The May 12, 2021 Audit served to clarify Case: 22-1187 Document: 99 Page: 11 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 12

the November 16, 2020 A udit.”). 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 Agencydid 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 20 21 Memo] gives context to thosenames 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 thataccessed 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. Despit e th e motion’s reference s to a “proper comparator analysis

, ” neither in the motion nor anywhere else Case: 22-1187 Document: 99 Page: 12 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 13

how the Board could have missed it. The motio n 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

- Rodrig uez 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 presen ted 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 underlyingaction of searching ALERTS inappropriately in an unauthorized manner.” Id

. Counsel for Gomez- Rodriguez also questioned his own client about comparators. J.A. 483

. Gomez-R odriguez interpreted the November 2020 audit as identifying 14 officers who had conducted ALERTS searches just as he had , and yet, to his knowl edge, none of them “faced discipline or removal.” Id

. There is, however, no documentary support in the record f or these contentions and Gomez

- Rodriguez neve r 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 t hey were treated differently from hi mself, or ask the Board to determine he was subjected to a disparate penalty. Case: 22-1187 Document: 99 Page: 13 Filed: 05/24/2023GOMEZ

- RODRIGUEZ v. ARMY 14

was never alerted to the prospect that it need ed to develop a record with respect to the purported comparators. As a result, t he 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, e ven 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 referen ced 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 (F ed. 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 unequaltreatment 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

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conclusion that his removal was unreasonable. A s 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 cond ucted 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 Ho ckenbery – was even arguably similarly situated , and that o fficer 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. 7 4 ( 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, t he burden would then have shift ed to the agency to “prove a legitimate reason for the difference in treatment by a preponderance of the evidence.” Miskill

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- RODRIGUEZ v. ARMY 16

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 t hat the IRP memorandum was the basis of the charge. He further contends that t he Board improperly relied on the specification in the first charge (improperALERTS usage) to sustain the second charge (IRP decertification).

To meet the requirement s of due process, Gomez

- Rodriguez had to be provided notice and an opportunity to be hear d. 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 in formed response. See, e.g.

, LaChance v. Merit Sys. Prot. Bd. , 147 F.3d 1367, 1371 (Fed. Cir. 1998). Due process was satisfied her e. The notice of proposedremoval 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- Rodrigu ez was decertified. Gomez

- Rodriguez wasgiven the opportunity to respond to the charges in the notice, and he did so.

863 F.3d at 1 3 84. 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 Boar d’s findings on both chargestracked 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 Gomez

Rodriguez 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).

I II

We have considered Gomez

- Rodriguez’s additional argume nts and find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

C OSTS
No costs. Case: 22-1187 Document: 99 Page: 17 Filed: 05/24/2023