UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHANE FAIFERLICK,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

SF-0752-20-0401-I-1

DATE: August 9, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

Adam W. Boyer and Lynn Stoppy, Kansas City, Kansas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed his removal from Federal service. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

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

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to find that the agency did not commit harmful procedural error, we

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

§ 1201.113(b). 

BACKGROUND

The appellant was formerly employed by the Bureau of Prisons as a

Maintenance Worker Supervisor until the agency removed him based on charges

of off-duty misconduct, failure to report a misdemeanor arrest, and providing

inaccurate information during an official investigation. Initial Appeal File (IAF),

Tab 6 at 21-24, 29-32, Tab 8 at 4. The appellant appealed and asserted that the

agency could not prove the specifications, the penalty of removal was too harsh,

and the agency violated his due process rights. IAF, Tab 1 at 4, Tab 15.

Specifically, the appellant argued that the agency violated his due process rights

when the deciding official considered two documents not provided to the

appellant with the notice of proposed removal—the Standards of Employee

Conduct and the agency’s table of penalties incorporated therein—and when the

deciding official considered the factors enumerated in Douglas v. Veterans

Administration, 5 M.S.P.R. 280 (1981), without prior notice. IAF, Tab 15.

After a hearing, the administrative judge issued an initial decision, which

sustained two of the three charges, rejected the due process affirmative defense,

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and affirmed the appellant’s removal. IAF, Tab 19, Initial Decision (ID) at 7-15,

21.2 The appellant has filed a petition for review challenging the administrative

judge’s denial of the due process defense, and the agency has filed a response.

Petition for Review (PFR) File, Tabs 3, 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant contends that the administrative judge erred in

finding that the agency did not violate his due process rights because he was on

notice that the deciding official would consider the Standards of Employee

Conduct and the table of penalties incorporated therein, and he was on notice and

had an opportunity to respond to the information used by the deciding official in

weighing the Douglas factors in reaching a decision on the removal action.

PFR File, Tab 3; ID at 11-15. 

“The core of due process is the right of notice and a meaningful

opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998). The

Board has held that an agency’s failure to provide a nonprobationary Federal

employee with prior notice and an opportunity to present a response to an

appealable agency action deprives him of his property right in his employment

and constitutes an abridgment of his constitutional right to minimum due process

of law. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 680-81 (1991).

A deciding official may not consider new and material information that the

appellant was not aware would be taken into consideration in connection with the

charges or the penalty. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed.

Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377

(Fed. Cir. 1999). In determining whether a deciding official’s consideration of

information violates due process, the question is whether the information is “so

substantial and so likely to cause prejudice that no employee can fairly be

required to be subjected to a deprivation of property under such circumstances.”

2 The administrative judge found that the agency failed to prove the charge of failure to

report a misdemeanor arrest. ID at 8-10.

3
Stone, 179 F.3d at 1377. When such a due process violation has occurred, the

violation is not subject to the “harmless error test,” and the appellant is entitled to

a new constitutionally correct administrative procedure. Id. 

We first address the appellant’s argument that the agency violated his due

process rights when the deciding official considered the Standards of Employee

Conduct, including the agency’s table of penalties, in reaching his decision to

remove the appellant without providing a copy of the document in the evidence

file with the proposed removal. PFR File, Tab 3 at 6, 8-9. The Standards of

Employee Conduct is a document that outlines the behavioral expectations of

agency employees and includes recommended penalties for misconduct.

IAF, Tab 6 at 87-120. The appellant acknowledged receipt of this document upon

his hire. Id. at 86. We agree with the administrative judge that the appellant was

on notice that the Standards of Employee Conduct and the incorporated table of

penalties would be considered in his removal action because the document is

referenced four times in the notice of proposed removal. Id. at 29-32; ID at 13.

Further, the notice of proposed removal quotes the standards of conduct that the

agency alleged the appellant violated under each charge, and the appellant

responded to each of those charges in his response. IAF, Tab 6 at 25-27; 29-31;

see Coppola v. U.S. Postal Service, 47 M.S.P.R. 307, 312 (1991) (holding that

when an appellant comes forward and refutes a charge made against him, the

Board cannot find that he was not on notice of the charge). 

Regarding the table of penalties, the appellant argues on review that

Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161 (2012), requires

the agency to notify the appellant which charges in the table of penalties it would

consider, and its failure to do so violated the appellant’s due process rights.

PFR File, Tab 3 at 9. We disagree. In Jenkins, the Board found a due process

violation when the deciding official considered the range of penalties in the

agency’s table of penalties for charges other than those listed in the notice of

proposed removal. Jenkins, 118 M.S.P.R. 161, ¶ 12. That is not the case here.

4
The appellant was informed that removal was being proposed based on three

violations of the Standards of Employee Conduct, and the deciding official

testified that he considered the range of penalties for those charges only. IAF,

Tab 6 at 29-32, Tab 17, Hearing Record (testimony of deciding official).

Consideration of consistency of the penalty with the agency’s table of penalties is

not an aggravating factor that would require advance notice. See Harding v. U.S.

Naval Academy, 567 F. App’x 920, 925 (Fed. Cir. 2014) 3 (holding that

consistency of the penalty with other decisions was not used as an aggravating

factor and thus due process did not require that an employee be given advance

notice). We find that consideration of documents that are referenced and quoted

in the notice of proposed removal is not “so likely to cause prejudice that no

employee can fairly be required to be subjected to a deprivation of property under

such circumstances,” and thus, we find no due process violation. Stone, 179 F.3d

at 1377.

Finally, the appellant argues on review that the deciding official’s

consideration of the Douglas factors “not listed in the evidence file” constitutes a

due process violation because the appellant did not know the deciding official

would consider this “new information.” PFR File, Tab 3 at 8. We disagree.

Although a deciding official’s consideration of aggravating factors as a basis for

the imposition of a penalty could constitute a due process violation, the appellant

does not argue, and we do not find, that the deciding official considered

aggravating factors that were not contained in the notice of proposed removal.

See Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 5 (2011). We agree

with the administrative judge that the facts and evidence the deciding official

considered in weighing the Douglas factors were listed in the notice of proposed

removal and the appellant had the opportunity to respond to those facts in his

written and oral responses. ID at 15; IAF, Tab 6 at 25-32. An appellant is not

3 The Board may rely on unpublished decisions from the U.S. Court of Appeals for the

Federal Circuit to the extent the Board finds the reasoning persuasive, as we do here.

Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 10 n.1 (2016). 

5
entitled to know in advance the particular weight the deciding official may attach

to certain facts. Wilson v. Department of Homeland Security, 120 M.S.P.R. 686,

¶ 12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015). Thus, the deciding

official’s weighing of the Douglas factors did not violate the appellant’s due

process rights. 

Although we find no constitutional violation, we still must consider

whether the agency committed harmful procedural error. Stone, 179 F.3d.

at 1377-78 (stating that, in addition to the protections afforded by the

Constitution, public employees also are entitled to whatever other procedural

protections are afforded them by statute, regulation, or agency procedure).

Although an agency is required to state the reasons for a proposed adverse action

in sufficient detail to allow the employee to make an informed reply, the charge

must be viewed in light of the accompanying specifications and circumstances,

and should not be technically construed. Spearman v. U.S. Postal Service,

44 M.S.P.R. 135, 139 (1990). As we explained above, the notice of proposed

removal provided sufficient details regarding the charges and aggravating factors

for the appellant to have made an informed reply, and we therefore find no

harmful procedural error.

Therefore, we deny the petition for review and affirm the initial decision as

expressly modified.

6
NOTICE OF APPEAL RIGHTS4

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

4

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

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

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

7
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

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

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

9
disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

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

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

5 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

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

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

10
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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