                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SOHAIL KHAN,                                    DOCKET NUMBER
                         Appellant,                  SF-0752-15-0830-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: November 21, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas E. Tierney, Esquire, Norwalk, Connecticut, for the appellant.

           Meredith A. Johnson, Long Beach, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

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


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     or regulation or the erroneous application of the law to 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The agency appointed the appellant to a Customs and Border Patrol Officer
     position in January 2005. Initial Appeal File (IAF), Tab 7 at 94. In April 2015,
     the agency proposed his removal based upon a single charge of falsification. Id.
     at 85-91. In short, the 15 specifications underlying the charge alleged that the
     appellant provided false information on a number of occasions concerning his
     background information and true identity.      Id. at 85-89.   After the appellant
     responded, id. at 71-84, the deciding official sustained the removal, id. at 54-59.
     The deciding official concluded that the evidence supported each sp ecification,
     but also indicated any one of the specifications would have presented a sufficient
     basis for removal. Id. at 55-56.
¶3        The appellant appealed his removal to the Board.            IAF, Tab 1.     He
     stipulated to specifications 12‑14 of the falsification charge, each concerning
     representations made during his periodic background reinvestigation with the
     agency. IAF, Tab 7 at 88, Tab 18 at 1. Specification 12 alleged that the appellant
     falsely claimed that he rented a townhouse owned by another individual named
     Sohail Mohammad. IAF, Tab 7 at 88. Specification 13 alleged that the appellant
     falsely denied owning any real property. Id. Specification 14 alleged that the
     appellant provided a fabricated rental agreement and had a friend falsely pose as
                                                                                       3

     his landlord, both with the intent to deceive the agency’s background investigator
     into thinking that the listed owner of the property, Sohail Mohammad, was
     someone other than the appellant. Id.
¶4        Although the appellant conceded the aforementioned specificati ons as well
     as the nexus requirement, he presented arguments concerning an alleged due
     process violation and the reasonableness of the penalty. IAF, Tab 18 at 2. The
     administrative judge sustained the appellant’s removal          based upon the
     specifications he stipulated to, without substantively addressing the others. IAF,
     Tab 22, Initial Decision (ID).   The appellant has filed a petition for review.
     Petition for Review (PFR) File, Tab 1. The agency has filed a response and the
     appellant has replied. PFR File, Tabs 3‑4.

     The administrative judge properly denied the appellant’s due process claim.
¶5        In his petition for review, the appellant reasserts his due process claim.
     PFR File, Tab 1 at 4-10. According to the appellant, the agency charged him with
     using two identities, but the deciding official improperly treated the matter as if
     he were an imposter, for whom the agency could not confirm the true identity. Id.
     at 5‑10. We find no merit to the appellant’s claim.
¶6        Fundamental due process requires that notice of the charges must be
     sufficiently detailed to provide a meaningful opportunity to be heard. Mason v.
     Department of the Navy, 70 M.S.P.R. 584, 586-87 (1996). In analyzing a claim of
     denial of due process, the Board will examine, among other things, whether lack
     of specificity in the notice affected the appellant detrimentally or caused him any
     surprise. Id. at 587. When an appellant comes forward and refutes a char ge made
     against him, the Board cannot find that he was not given notice of the charge.
     Yinat v. Department of the Army, 101 M.S.P.R. 328, ¶ 15 (2005). Here, to the
     extent that the appellant argues that he did not receive proper notice of the
     charge, his argument is unpersuasive. The record shows that the appellant was
                                                                                      4

     fully notified of the allegations regarding his conduct and that he was provided
     with a full and fair opportunity to defend himself against them.
¶7        Furthermore, pursuant to the U.S. Court of Appeals for the Federal Circuit’s
     decisions in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
     2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
     1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
     rights when she relies upon new and material ex parte information as a basis for
     her decisions on the merits of a proposed charge or the penalty to be imposed.
     Ward, Stone, and their progeny recognize, however, that not all ex parte
     communications rise to the level of due process violations; rather, only ex parte
     communications that introduce new and material information to the deciding
     official are constitutionally infirm. Solis v. Department of Justice, 117 M.S.P.R.
     458, ¶ 8 (2012).
¶8        The following factors are used to determine if ex parte information is new
     and material:      (1) whether the ex parte information introduced cumulative, as
     opposed to new, information; (2) whether the employee knew of the information
     and had an opportunity to respond; and (3) whether the communication was of the
     type likely to result in undue pressure on the deciding off icial to rule in a
     particular manner.      Stone, 179 F.3d at 1377.   Ultimately, we must determine
     “whether the ex parte communication 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.” Id.
¶9        Although the proposal letter did not explicitly state that the agency cannot
     confirm the appellant’s true identity, the decision letter did. IAF, Tab 7 at 54.
     The deciding official, during her hearing testimony, similarly indicated that she
     could not confirm the appellant’s identity with certainty. IAF, Tab 21, Hearing
     Compact Disc (HCD) (testimony of A.M.).               Nevertheless, applying the
     aforementioned factors, the administrative judge found that doubt concernin g the
     appellant’s true identity was inherent in the charge and accompanying
                                                                                         5

      specifications because they detailed his having at least two identities. ID at 17.
      She further found that the appellant was on notice of this because the proposal
      letter began with the phrase, “You claim you were born in Pakistan as a Pakistani
      citizen on July 3, 1969 with the name Sohail Sultan Muhammad Khan.”              Id.
      (referencing IAF, Tab 7 at 85).    The administrative judge also found that the
      information was not of the type to result in undue pressure under the
      circumstances. Id. We agree.
¶10        The proposal letter described the circumstances underlying the falsification
      charge in detail. IAF, Tab 7 at 85-89. It described how the appellant used the
      altered passport of someone else to gain entry into the United States, then
      repeatedly continued to use both the name on that passport as well as the one he
      claimed as his own, over more than 20 years, with the help of others.        Id. It
      detailed how the appellant used these differing identities or provided false
      information about his prior use of those identities for purposes such as obtaining
      a Social Security number, a driver’s license, and employment with the agency.
      Id. Given the nature of the allegations, we are not persuaded that it was new and
      material for the deciding official to characterize the appellant’s misconduct as
      calling into question his true identity. The facts of this case differ from those in
      which an employee is on notice of one charge, but a deciding official treats the
      charge as something altogether different in determining the appropriate penalty.
      Cf. Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12
      (2012) (finding a Ward/Stone violation when the deciding official relied on
      portions of a table of penalties concerning a charge other than the one brought
      against the employee and referenced in the notice of proposed removal); Culley v.
      Defense Logistics Agency, 60 M.S.P.R. 204, 214-15 (1993) (finding that the
      deciding official erred by treating an “unauthorized possession of government
      property” charge as theft in determining an appropriate penalty); Dubiel v. U.S.
      Postal Service, 54 M.S.P.R. 428, 431-32 (1992) (finding that the deciding official
      erred by treating a specific charge of improperly addre ssing a subordinate as if it
                                                                                        6

      were a charge of sexual harassment while assessing the appropriate penalty).
      Accordingly, we find that the appellant’s due process claim fails.

      The administrative judge properly sustained the penalty of removal.
¶11         The appellant next alleges that the agency conducted an improper Douglas
      penalty analysis.    PFR File, Tab 1 at 10-12 (referencing Douglas v. Veterans
      Administration, 5 M.S.P.R. 280 (1981)).       He asserts that the Board should
      conduct an independent penalty analysis, without deferring to the agency’s
      chosen penalty. Id. We disagree and find that the administrative judge properly
      sustained the removal.
¶12         The Board has long held that, in a case like this, when all of the charges are
      sustained, even when some of the specifications are not, the agency’s penalty
      determination is entitled to deference and should be reviewed only to determine if
      the agency considered all of the relevant factors and exercised its discretion
      within the tolerable limits of reasonableness.         Brough v. Department of
      Commerce, 119 M.S.P.R. 118, ¶ 9 (2013); Penland v. Department of the Interior,
      115 M.S.P.R. 474, ¶¶ 7, 12 (2010). In doing so, the Board must give due weight
      to the agency’s primary discretion in maintaining employee discipline and
      efficiency, recognizing that the Board’s function is not to displace management’s
      responsibility but to ensure that managerial judgment has been properly
      exercised. Penland, 115 M.S.P.R. 474, ¶ 7.
¶13         The Board has articulated a number of factors to be considered in
      determining the propriety of a penalty.     Douglas, 5 M.S.P.R. at 305.     Among
      others, they include (1) the effect of the offense upon the employee’s ability to
      perform at a satisfactory level and its effect upon supervisors’ confidence in the
      employee’s ability to perform assigned duties, as well as (2) the notoriety of the
      offense or its impact upon the agency’s reputation. Id. The appellant alleges that
      the deciding official’s consideration of those two factors was improper.       PFR
      File, Tab 1 at 11.
                                                                                            7

¶14         Concerning the first of the aforementioned factors, the appellant alleges that
      the deciding official improperly assumed that his supervisors lost trust in him,
      without actually seeking their opinion on the matter. Id. However, the penalty
      judgment belongs to the agency, not to an appellant’s supervisor.            See, e.g.,
      Batara v. Department of the Navy, 123 M.S.P.R. 278, ¶¶ 6-7 (2016) (finding that
      an agency’s choice of removal was entitled to deference, even though the
      appellant’s immediate chain of command urged that he be given a second chance).
      Under the circumstances presented by the appellant’s misconduct, we find it
      inconsequential that the deciding official addressed the              Douglas factor
      concerning confidence and trust without direct input from the appellant’s
      immediate supervisors. IAF, Tab 7 at 55.
¶15         Concerning the second of the aforementioned factors, the appellant alleges
      that his misconduct did not garner any notoriety among members of the public or
      bad publicity. 2 PFR File, Tab 1 at 11; HCD (cross-examination of the A.M.). He
      argues that the deciding official improperly considered potential, rather than
      actual, notoriety. PFR File, Tab 1 at 11; HCD (cross-examination of the A.M.).
      We disagree.
¶16         It is apparent that the appellant’s misconduct, falsifying information
      concerning his identity, had at least the potential to seriously harm the reputation
      of the agency, whose mission includes detecting unlawful activity and facil itating
      lawful border crossings. See, e.g., IAF, Tab 7 at 112. Therefore, even if we were
      to accept the appellant’s contention that the Douglas factor concerning notoriety

      2
        Although the appellant’s misconduct may not have garnered any publicity, knowledge
      of the underlying facts was not limited to the confines of the agency.              The
      corresponding investigation began after a woman claiming to be the appellant’s former
      sister-in-law provided a tip to the Canadian Border Services Agency. IAF, Tab 8 at 6,
      30-32. In addition, the investigation ultimately involved a n umber of other individuals
      and entities, including additional Federal agencies, the Los Angeles County District
      Attorney, and the California Department of Motor Vehicles. See, e.g., IAF, Tab 7 at 56,
      85-88, Tab 8 at 5-26. Moreover, the appellant has admitted that his misconduct
      involved having a friend pose as his landlord to conceal his true background
      information. IAF, Tab 7 at 88, Tab 18 at 1.
                                                                                   8

implicates actual but not potential bad publicity, the potential notoriety and har m
is still relevant under other factors, such as the nature and seriousness of the
offense. See, e.g., Boo v. Department of Homeland Security, 122 M.S.P.R. 100,
¶ 18 (2014) (recognizing that the nature and seriousness of the offense is the most
important   Douglas    factor);   Chandler   v.   Social   Security   Administration,
80 M.S.P.R. 542, ¶ 12 (1999) (recognizing the “potential for harm to the agency's
basic mission” as aggravating in a penalty analysis). Accordingly, we find that
the deciding official did not err in considering the potential for notoriety as an
aggravating factor, and the administrative judge properly deferred to the agency’s
chosen penalty of removal.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
                                                                                    9

Code, at our website, http://www.mspb.gov/appeals/uscode.htm.            Additional
information is available at the court’s website, www.cafc.uscourts.gov.            Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
      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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
