United States Court of Appeals 

for the Federal Circuit ______________________

JOSEPH P. VALLES,

Petitioner

v.

DEPARTMENT OF STATE,

Respondent

______________________

2020-1686

______________________

Petition for review of the Merit Systems Protection 

Board in No. DE-0752-19-0297-I-2.

______________________

Decided: October 29, 2021

______________________

CHRISTOPHER R. LANDRIGAN, Brownell Landrigan, PC, 

Washington, DC, argued for petitioner. 

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent. Also represented by BRIAN M.

BOYNTON, MARTIN F. HOCKEY, JR., TARA K. HOGAN.

 ______________________

Before DYK, LINN, and CHEN, Circuit Judges.

DYK, Circuit Judge.

Case: 20-1686 Document: 49 Page: 1 Filed: 10/29/2021
2 VALLES v. STATE

Joseph Valles appeals the final decision of the Merit 

Systems Protection Board (“Board”) affirming his removal 

from employment with the United States Department of 

State (“agency”). We affirm.

BACKGROUND

Mr. Valles began working for the Department of State 

as a passport specialist in 2011 in Tucson, Arizona. In 

March 2013, Mr. Valles transferred to the Colorado Passport Agency in the Bureau of Consular Affairs. In October 

2016, Mr. Valles served a three-day suspension for charges 

of improper personal conduct regarding inappropriate sexual and political comments made to co-workers and customers. In March 2018, Mr. Valles served a five-day 

suspension for charges of failure to follow instructions and 

failure to protect personally identifiable information. In 

February 2019, Mr. Valles received a performance appraisal of “Fully Successful” for his work as a passport specialist in Colorado during calendar year 2018

(“evaluation”).

Notwithstanding the fully successful evaluation, in 

March 2019, the agency proposed Mr. Valles’ removal 

based on four charges from eighteen specifications dating 

between July 2018 and February 2019. Some but not all of 

the alleged conduct occurred during the 2018 evaluation 

period. The first charge (“Charge One”) was failure to follow instructions, based on eleven specifications regarding 

Mr. Valles’ failure to properly move along applications and 

provide text updates. The second charge was failure to protect personally identifiable information based on one specification regarding Mr. Valles leaving a passport 

application on a photocopier. The third charge was failure 

to follow policy based on five specifications regarding Mr. 

Valles’ handling of passport fees, not maintaining control 

over applications, and leaving his adjudication stamp unsecured. The fourth charge was improper personal conduct 

based on Mr. Valles drinking from a wine glass at his 

Case: 20-1686 Document: 49 Page: 2 Filed: 10/29/2021
VALLES v. STATE 3

workstation in the public counter. The agency removed 

Mr. Valles from his position effective May 7, 2019.

Mr. Valles appealed to the Board. After a hearing, in a 

January 6, 2020, initial decision, the administrative judge 

(“AJ”) determined that the agency proved all the charges.

The AJ further determined that the agency established

a nexus between the proven misconduct and the agency’s 

ability to carry out its mission because all the misconduct 

occurred at work. Finally, the AJ reviewed the appropriateness of removing Mr. Valles from service as a penalty. 

The AJ determined that the agency properly considered all

the relevant Douglas factors,1 including the repeated nature and seriousness of the misconduct, Mr. Valles’ prior 

discipline, his seven years of federal service and job performance, the consistency of the penalty with similar cases, 

and the lack of rehabilitation potential on Mr. Valles’ part. 

The AJ upheld the removal penalty as reasonable.

Mr. Valles did not seek review by the full Board. The 

AJ’s initial decision became the final decision of the Board. 

Mr. Valles petitioned for review by this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited by statute. 

We are permitted to set aside a Board decision only if we 

find that it is: 

(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.

1 Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981).

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4 VALLES v. STATE

5 U.S.C. § 7703(c).

I. Charge One

Mr. Valles argues that the Board erred in disregarding 

the “Fully Successful” evaluation because the evaluation

rebuts Charge One.2 On Charge One, the Board rejected 

Mr. Valles’ argument that the evaluation undermined the 

agency’s proof, found no inconsistency between the evaluation and the charge, and instead credited “management’s 

conclusion that [Mr. Valles’] misbehavior presented an issue of misconduct more than performance” and “management’s distinction that performance involves an employee 

who ‘can’t do,’ while misconduct involves an employee who 

‘won’t do’.” JA 17.

We agree with Mr. Valles that the Board should have 

considered the evaluation. Issues of misconduct and performance may overlap. In this case, the agency’s employee 

appraisal form itself demonstrates that following instructions can fall within this area of overlap: one performance 

requirement is that an employee “[f]ollows passport services procedures and directives related to the adjudication 

2 In support of his argument, Mr. Valles cites to 

Moretz v. Department of the Treasury, 19 M.S.P.R. 376, 378 

(1984), for the proposition that “a successful performance 

rating rebuts a charge of failing to meet the standards of a 

position.” Appellant’s Opening Br. 37. However, in Moretz, 

the agency relied on the evaluation to establish below 

standard performance. 19 M.S.P.R. at 378. The Board 

merely determined that a work evaluation could not sustain a charge of failing to meet the standards of the position 

because the specifications were based on “scores connoting 

less than fully satisfactory, but not entirely unsatisfactory, 

work performance.” Id. Here, the deciding official did not 

rely on the evaluation to establish unsatisfactory performance.

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VALLES v. STATE 5

of a passport application.” JA 182. At oral argument, the 

government admitted that the evaluation covers following 

instructions. See Oral Arg. at 14:20–15:06, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20-

1686_08312021.mp3. Under these circumstances, the evaluation was clearly relevant, and the Board was obligated 

to consider it. In so holding, we do not suggest that the 

existence of a fully successful performance evaluation bars 

discipline for matters covered by the evaluation, but 

merely that the evaluation must be considered in making 

the determination.

However, we also conclude that, in the circumstances 

of this case, the Board’s disregard of the evaluation was not 

reversible error. As an appellate court, we are obligated to 

apply the rule of harmless error, examining the record 

“without regard to errors or defects which do not affect the 

substantial rights of the parties.” 28 U.S.C. § 2111. See, 

e.g., Shinseki v. Sanders, 556 U.S. 396, 411 (2009); Boss v. 

Dep’t of Homeland Sec., 908 F.3d 1278, 1282–83 (Fed. Cir. 

2018); Giove v. Dep’t of Transp., 230 F.3d 1333, 1338–39 

(Fed. Cir. 2000). Although the test for harmful error can 

be complex, we think that, in the circumstances of this 

case, Mr. Valles must show a “likelihood that the result 

would have been different.” Sanders, 556 U.S. at 411.

Mr. Valles bears the burden of establishing harmful error. Id. at 409–10 (party appealing an administrative decision bears the burden of establishing harmful error); see 

also Palmer v. Hoffman, 318 U.S. 109, 116 (1943) (“He who 

seeks to have a judgment set aside because of an erroneous 

ruling carries the burden of showing that prejudice resulted.”).

Here, Mr. Valles has not shown that the consideration 

of the evaluation would likely lead to a different result on

Charge One. He did not dispute at the agency or the Board

that any of the events underlying the specifications occurred. Mr. Valles held onto completed applications for 

Case: 20-1686 Document: 49 Page: 5 Filed: 10/29/2021
6 VALLES v. STATE

three days before passing them along to his supervisor despite being told to move them along “as soon as possible” to 

limit delays (Specifications 1–4), provided an inaccurate or 

untimely text update on an application (Specification 5), 

misplaced applications (Specification 6), held off on working on an application for a day despite being told to do so 

promptly (Specification 7), and passed along incomplete 

batches of applications to his supervisor that were not 

ready for review (Specifications 8–11). Furthermore, five 

of the eleven specifications in Charge One took place in 

2019, after the evaluation period, and thus could not be rebutted by the evaluation.

Under these circumstances, Mr. Valles has not shown 

harmful error with respect to the proof of Charge One.

II. The Penalty Determination

Penalty determinations must be reasonable based on 

an analysis of the relevant factors set forth in Douglas, 5

M.S.P.B. at 331–32. “[A]n appropriate penalty must reflect 

a responsible balancing of the relevant factors.” Connor v. 

Dep’t of Veterans Affs., 8 F.4th 1319, 1324–25 (Fed. Cir. 

2021) (internal quotation marks and citations omitted). 

One such factor is the “nature and seriousness of the offense.” Douglas, 5 M.S.P.B. at 332. “The choice of penalty 

is committed to the sound discretion of the employing 

agency and will not be overturned unless the agency’s 

choice of penalty is wholly unwarranted in light of all the 

relevant factors.” Guise v. Dep’t of Just., 330 F.3d 1376, 

1382 (Fed. Cir. 2003) (citing Lachance v. Devall, 178 F.3d 

1246, 1251 (Fed. Cir. 1999)). 

Mr. Valles argues on appeal that the evaluation provides a “dispositive” and “comprehensive assessment of the 

seriousness of the alleged misconduct.” Appellant’s Opening Br. 57. Mr. Valles is correct that his fully successful 

rating is relevant to the seriousness of the offenses insofar 

as the offenses occurred during the evaluation period. The 

Board did not discuss the evaluation in relation to the 

Case: 20-1686 Document: 49 Page: 6 Filed: 10/29/2021
VALLES v. STATE 7

penalty, though it did cite the agency’s decision letter 

which “took into account [Mr. Valles’] seven years of federal 

service and job performance.” JA 25. However, here 

again, Mr. Valles has not shown harmful error even if we 

assume that the Board erroneously failed to consider the 

evaluation in connection with the penalty.

First, even if the Board did not consider the evaluation, 

the deciding official did consider it. In a thorough analysis 

of the Douglas factors, the deciding official expressly 

weighed Mr. Valles’ evaluation and past work record 

among other mitigating factors. The deciding official considered whether alternative sanctions might be appropriate, and ultimately decided that “any lesser or alternative 

sanction [than removal] would be ineffective to stress upon 

[Mr. Valles] the importance of following management’s instructions to avoid potential harm to our U.S. citizen customers and ensure the efficient operations of the Colorado 

Passport Agency.” JA 75. The fact that the deciding official 

admitted that he did not read part of the narrative summary portion of the evaluation does not alter the fact that 

the gist of the evaluation was considered.

Second, consideration of the evaluation was not likely 

to alter the Board’s conclusion that the penalty was reasonable. Even if the evaluation suggested that the 2018 events 

in Charge One were not serious in and of themselves,3 the 

failure to follow instructions is undoubtedly a serious matter when it occurs repeatedly over a prolonged period. In 

3 Mr. Valles also argues that the penalty is unreasonable due to the commonplace nature of his errors. 

There was no evidence in the record to show that it was 

commonplace for employees to make errors to the extent 

that Mr. Valles did. The Board credited testimony that 

“what distinguished [Mr. Valles] was the frequency of his 

misconduct, in contrast to his colleagues who would change 

course after limited guidance or discipline.” JA 11 n.9.

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8 VALLES v. STATE

affirming the reasonableness of the agency’s penalty, the 

Board “found [the deciding official’s] testimony highly credible . . . about the seriousness and repetitive nature of the 

misconduct.” JA 25. In the decision letter, the deciding 

official cited “the repetitive nature of [Mr. Valles’] misconduct” and his “history of consistently ignoring management 

instructions” in determining that removal was a reasonable penalty. JA 73, 75. The Board found that the agency’s 

decision letter “meticulously addressed all of the pertinent 

Douglas factors, including the nature and seriousness of 

the misconduct, its repeated nature, and its relationship to 

[Mr. Valles’] duties.” JA 25. The Board found that the letter “expressly took into account that [Mr. Valles] was 

clearly on notice of management’s expectations, in part 

based on [his] prior discipline,” and also “took into account 

[Mr. Valles’] seven years of federal service and job performance.” Id. 

The prior discipline concerned the suspension of Mr. 

Valles in early 2018, in part for a charge of failure to follow 

instructions. For this earlier charge, Mr. Valles admitted 

his failure to follow instructions regarding the underlying 

specifications. Those specifications resemble the ones at 

issue in Charge One; they involved Mr. Valles keeping active cases in his work-in-progress box for too long, failing 

to provide appropriate and complete text updates on applications, and stamping or signing applications that were not 

fully approvable. Five of the eleven specifications of 

Charge One took place in 2019, after the evaluation period. 

Given the repetitive nature of the conduct and the deciding 

official’s reliance on this conduct, consideration of the evaluation was not shown to be likely to change the Board’s 

determination of reasonableness.

We conclude that Mr. Valles has not established that 

there was harmful error with respect to the penalty determination.

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VALLES v. STATE 9

III. Other Issues

Additionally, Mr. Valles argues that the Board relied 

on hearsay statements to support its findings on the charge 

of failure to follow policy. But the Board is permitted to 

consider hearsay evidence. Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir. 1998) (“It has 

long been settled, however, that hearsay evidence may be 

used in Board proceedings and may be accepted as preponderant evidence even without corroboration if, to a reasonable mind, the circumstances are such as to lend it 

credence.”). Mr. Valles also challenges the charge that he

“displayed improper personal conduct when [he] drank 

from a wineglass while at [his] workstation in the public 

counter area.” JA 23. Even though Mr. Valles claimed to 

be drinking only water from the wineglass, he did not dispute that his actions were in full view of the public. Id. Mr. 

Valles’ claim that he placed the wineglass behind the counter out of sight is unavailing because it does nothing to refute the allegation that when he drank water from it, he 

would have been in view of the public. 

We have considered the remainder of Mr. Valles’ contentions and find them to be without merit. The Board’s 

decision was supported by substantial evidence.

AFFIRMED

COSTS

No costs.

Case: 20-1686 Document: 49 Page: 9 Filed: 10/29/2021