                     UNITED STATES OF AMERICA
                  MERIT SYSTEMS PROTECTION BOARD
                                    2015 MSPB 1

                         Docket No. CB-0752-15-0228-I-1 1

                                Goeke and Bottini,
                                    Appellants,
                                          v.
                             Department of Justice,
                                      Agency.
                                   January 2, 2015

      Bonnie Brownell, Esquire, and Donald R. DePriest, Esquire, Washington,
        D.C., for appellant Goeke.

      Kenneth L. Wainstein and Sara S. Zdeb, Washington, D.C., for appellant
        Bottini.

      Charles M. Kersten, Evan Harry Perlman, Joanne Fine, and Robin M.
        Fields, Washington, D.C., for the agency.

                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                         Anne M. Wagner, Vice Chairman
                            Mark A. Robbins, Member




1
  This matter is a consolidation of two cases, James A. Goeke v. Department of Justice,
MSPB Docket No. SF-0752-12-0598-I-1, and Joseph W. Bottini v. Department of
Justice, MSPB Docket No. SF-0752-12-0600-I-1. As explained more fully below, the
administrative judge consolidated these matters pursuant to 5 C.F.R. 1201.36(a)(1), (b)
under MSPB Docket No. SF-0752-12-0598-I-1. In accordance with the Board’s process
for adjudicating consolidated matters, these matters have now been consolidated under
MSPB Docket No. CB-0752-15-0228-I-1.
                                                                                         2

                                 OPINION AND ORDER

¶1         This case is before the Board on the agency’s petition for review of the
     administrative judge’s initial decision, which reversed the appellants’ suspensions
     on the grounds of harmful procedural error. For the reasons set forth below, we
     AFFIRM the initial decision AS MODIFIED, and DO NOT SUSTAIN the
     appellants’ suspensions.

                                      BACKGROUND
¶2         The appellants are Assistant United States Attorneys who participated in
     the 2008 federal criminal prosecution of a United States Senator for failing to
     report gifts and liabilities on his financial disclosure statements.         Hearing
     Transcript (HT) at 9-14 (Nov. 7, 2012); HT at 5, 10 (Nov. 8, 2012); MSPB
     Docket No. SF-0752-12-0598-I-1, Initial Appeal File (Goeke IAF), Tab 6,
     Subtab 4g at 20 n.5. 2 After a jury convicted the Senator, the government moved
     to vacate the conviction because its prosecution team had failed to disclose
     information to which the defense was constitutionally entitled, specifically,
     information that was exculpatory or could have been used to impeach the
     prosecution’s witnesses. Goeke IAF, Tab 5, Subtab 4g at 19-20, 35, 37, 50-51;
     HT at 13, 120 (Nov. 29, 2012).              The agency’s Office of Professional
     Responsibility (OPR) investigated the appellants’ conduct and issued a Report of
     Investigation   (ROI)   concluding   that    they   had   recklessly,   although   not
     intentionally, committed professional misconduct in handling some of this
     information. Goeke IAF, Tab 5, Subtab 4g at 43-44. Pursuant to the agency’s
     recently-implemented disciplinary review process, OPR referred its findings to
     the agency’s Professional Misconduct Review Unit (PMRU), which is responsible
     for disciplining attorneys and referring them to the state bar for matters relating

     2
       For the purposes of consistency and clarity, we in most instances cite only to the
     initial appeal file in the Goeke appeal, MSPB Docket No. SF-0752-12-0598-I-1.
                                                                                        3

     to professional misconduct. Id., Subtab 4f at 1, Subtab 4k at 3-4. The chief of
     the unit (Chief) assigned the matter to an attorney working for him to determine
     whether OPR’s findings were correct, and, if he concluded that discipline was
     warranted, to issue either a letter of reprimand or a proposal to suspend or remove
     the appellants. Id., Subtab 4f at 1, Subtab 4k at 5. After reviewing OPR’s report,
     the assigned attorney became convinced that the appellants’ conduct did not rise
     to the level of professional misconduct as the agency defined the offense.
     Because the PMRU had jurisdiction only over professional misconduct, the
     assigned attorney concluded that he did not have the authority to propose any
     discipline for the appellants. Id., Subtab 4i at 2. Ultimately he drafted a lengthy
     memorandum explaining in detail why the appellants’ actions did not rise to the
     level of professional misconduct. Id., Subtab 4c at 35-116.
¶3         When it became apparent that the assigned attorney disagreed with OPR’s
     findings of professional misconduct, the agency appointed the Chief of the
     PMRU, who agreed with OPR’s findings, to be the proposing official instead of
     the assigned attorney.     Id., Subtab 4f.    The Chief then proposed a 45-day
     suspension for appellant Bottini, MSPB Docket No. SF-0752-12-0600-I-1, Initial
     Appeal File (Bottini IAF), Tab 5, Subtab 4e, and a 15-day suspension for
     appellant Goeke, both for professional misconduct.              Goeke IAF, Tab 5,
     Subtab 4e.   After receiving oral and written responses from the appellants, an
     Associate Deputy Attorney General upheld the charges and imposed a 40-day
     suspension for appellant Bottini and a 15-day suspension for appellant Goeke.
     Bottini IAF, Tab 6, Subtab 4a; Goeke IAF, Tab 6, Subtab 4a.
¶4         The    appellants   challenged   the   suspensions   in   appeals   which   the
     administrative judge consolidated.      Goeke IAF, Tabs 1, 16; see 5 C.F.R.
     § 1201.36(a). Following a lengthy hearing, the administrative judge issued an
     initial decision reversing both actions based on harmful procedural error. Goeke
     IAF, Tab 67, Initial Decision (ID) at 2, 22. The administrative judge found that
     the agency erred by designating the PMRU Chief as the proposing official
                                                                                       4

     because the agency’s disciplinary process required a PMRU attorney to serve in
     that role. ID at 7-9. The administrative judge further found that the agency’s
     error was harmful because, had the original proposing official not been replaced,
     the appellants likely would have received a lesser level of discipline. ID at 16.
     In reversing the appellants’ suspensions, the administrative judge did not address
     the merits of the agency’s charges or the reasonableness of the agency’s selected
     penalties. ID at 2.
¶5            The agency has filed petitions for review in both cases, arguing that the
     administrative judge erred in concluding that the agency’s disciplinary process
     did not permit the PMRU Chief to serve as the proposing official. Petition for
     Review File, Tab 4. The appellants have filed separate responses to the petition
     for review, id., Tabs 9-10, and the agency has filed a unified reply, id.,
     Tabs 13-14. 3
¶6            Before addressing the analysis, we note that we are finding below that the
     agency committed not one, but two, significant errors, both of which were
     harmful to the appellants. Either of these harmful procedural errors, standing
     alone, would have justified the outcome reached in this case. We now turn our
     attention to these two errors.

                                             ANALYSIS
     The agency committed harmful procedural error by deviating from its PMRU
     disciplinary process.
¶7            Pursuant to 5 U.S.C. § 7701(c)(2), an agency’s adverse action “may not be
     sustained . . . if the employee or applicant for employment (A) shows harmful
     error in the application of the agency’s procedures in arriving at such decision[.]”
     Reversal of an agency’s action is therefore required where an appellant
     establishes that the agency committed a procedural error that likely had a harmful


     3
         The agency filed two copies of its reply brief captioned in both appeals.
                                                                                        5

     effect on the outcome of the case before the agency. Santos v. Department of the
     Navy, 58 M.S.P.R. 694, 697 (1993). That is so notwithstanding the severity of
     the misconduct alleged in the agency’s proposal notice. Harmful error, however,
     cannot be presumed; an agency’s error is harmful only where the record shows
     that it was likely to have caused the agency to reach a conclusion different from
     the one it would have reached in the absence or cure of the error.          Hope v.
     Department of the Army, 108 M.S.P.R. 6, ¶ 8 (2008). An agency is required to
     follow its own rules, regardless of whether those rules go beyond the
     requirements of government-wide statutes and regulations. Canary v. U.S. Postal
     Service, 119 M.S.P.R. 310, ¶ 11 (2013). Neither chapter 75, nor the Office of
     Personnel Management’s regulations, addresses the particular agency officials
     who should serve as proposing or deciding officials in adverse employment
     actions. See id.; see also Bross v. Department of Commerce, 389 F.3d 1212, 1216
     (Fed. Cir. 2004) (“The statute [chapter 75 of Title 5] and the Office of Personnel
     Management regulations do not designate which level of agency official should
     make a decision on an adverse action proposal.”). Notwithstanding, where, as
     here, an agency imposes a policy of proposing and issuing employee discipline,
     the agency is required to follow those procedures.
¶8         As it is relevant to the issues in this case, we find it instructive to briefly
     set out the terms of the rather complicated disciplinary process the agency has put
     in place for dealing with attorney professional misconduct. The agency’s OPR
     “has jurisdiction to investigate allegations of misconduct involving [agency]
     attorneys that relate to the exercise of their authority to investigate, litigate or
     provide legal advice[.]” Goeke IAF, Tab 5, Subtab 4k at 2. Upon investigating
     allegations of professional misconduct, OPR may find that an agency attorney:
     (1) committed intentional professional misconduct; (2) engaged in professional
     misconduct in reckless disregard of a “standard imposed by law, applicable rule
     of professional misconduct, or Department regulation or policy”; (3) exercised
     poor judgment or mistake; or (4) committed no error at all. Id. OPR is charged
                                                                                        6

      with conducting an investigation into the attorney’s conduct and preparing an
      ROI “containing its findings and conclusions.” Id.
¶9          All OPR ROIs containing findings of either intentional or reckless
      professional misconduct are referred to the Chief of the PMRU for review. Id.
      at 4. The PMRU was first established in October 2010, in order to “centralize the
      decision-making [for discipline] in a specialized unit of attorneys . . . which
      would be responsible for all disciplinary and state bar referral actions relating to
      OPR findings of professional misconduct.” Id. at 3. The PMRU Chief “review[s]
      the ROI to determine whether the findings of intentional or reckless professional
      misconduct are supported by the evidence and applicable law,” id. at 4, and if the
      Chief “determines after a review of the OPR ROI that the professional
      misconduct findings . . . are supported by the evidence and the law, then the
      PMRU attorney will request . . . relevant Douglas factors 4 information,” id. at 5.
      The designated PMRU attorney then serves as the proposing official concerning
      the allegations against the employee of either intentional or reckless professional
      misconduct, and the PMRU attorney may propose discipline ranging from nothing
      to removal. Id. In instances where the PMRU attorney proposes an employee’s
      suspension or removal, the PMRU Chief serves as the deciding official. Id. at 6.
      Once a disciplinary action against an agency attorney “based on a finding of an
      intentional or reckless violation of a rule or rules of professional misconduct
      becomes final, the PMRU Chief will refer the matter to the appropriate state bar
      within 30 days.” Id.
¶10         Following the creation of the PMRU, the agency issued a memorandum
      entitled “Supplemental Guidance Regarding the Establishment of the [PMRU],”


      4
        The Board will review an agency-imposed penalty only to determine if the agency
      considered all the relevant factors and exercised management discretion within the
      tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R.
      280, 306 (1981).
                                                                                       7

      setting forth “the time frames within which disciplinary actions will be resolved.”
      Goeke IAF, Tab 5, Subtab 4i at 1. Important to the issues raised herein, the
      agency’s supplemental guidance reinforces that the PMRU attorney, as the
      proposing official, “will decide whether disciplinary action is warranted” once a
      professional misconduct allegation is referred to him by the PMRU Chief. Id.
      at 3.   Shortly after the agency issued this supplemental guidance, the agency
      issued a memorandum delegating the Chief of the PMRU with “the authority to
      issue or propose disciplinary action . . . when the [OPR] completes a final [ROI]
      and makes an assessment that professional misconduct occurred,” and further
      delegating to two specific PMRU attorneys “the authority to propose disciplinary
      actions . . . in matters referred to them for that purpose by the Chief of the
      [PMRU].” Goeke IAF, Tab 5, Subtab 4h at 1.
¶11           As the agency conceded in its post-hearing closing brief, however,
      following the creation of the PMRU, “the practice of the PMRU evolved beyond
      the confines of its charter.” Goeke IAF, Tab 66 at 77. Specifically, the PMRU
      Chief “permitted his staff attorneys to engage in their own analysis of whether the
      evidence and law support OPR’s conclusions, even though the written PMRU
      procedures made no allowance for such an assessment.”         Id.   As the agency
      acknowledged below, “[t]his policy created the possibility that the Chief and a
      PMRU attorney might completely disagree over whether a subject lawyer had
      committed misconduct.”       Id. at 77-78.   According to the agency, in such
      situations, the PMRU attorney’s “task would shift from writing a proposal to
      writing a memorandum for his superiors” explaining why he did not believe the
      evidence and law supported OPR’s findings of either intentional or reckless
      professional misconduct. Id. at 78.
¶12           That is exactly what happened in these cases. After receiving OPR’s report
      finding that the appellants engaged in reckless professional misconduct, the
      PMRU Chief reviewed the ROI and made a preliminary determination that its
      conclusions were supported by the evidence and the law, and he referred the
                                                                                                8

      matter to one of the PMRU attorneys designated to serve as a proposing official
      over the allegations of the appellants’ reckless professional misconduct.                Id.
      After reviewing the ROI, the designated PMRU attorney concluded that “OPR’s
      findings were not supported by the evidence or law,” id. at 79, and he issued an
      80-page memorandum explaining why he did not believe that OPR’s finding that
      the appellants engaged in reckless professional misconduct was supported by
      preponderant evidence, see id. at 79-80; see also Goeke IAF, Tab 5, Subtab 4c,
      Exhibit (Ex.) 2. However, the PMRU Chief disagreed with the PMRU attorney’s
      memorandum and requested of a Deputy Attorney General that he [the PMRU
      Chief] be specifically appointed as the proposing official in these matters, Goeke
      IAF, Tab 66 at 81, Tab 5, Subtab 4f, and he then proposed the suspensions that
      form the basis of the appellants’ appeals, 5 Goeke IAF, Tab 66 at 81.
¶13          Upon reviewing the agency’s disciplinary process, and the above-noted
      variations the agency permitted in implementing its process, we concur with the
      administrative judge that the agency committed harmful procedural error in
      effecting the appellants’ suspensions. Specifically, as we stated above, we find
      that the agency committed two separate harmful errors. First, we find that the
      agency committed harmful procedural error when it replaced the originally


      5
        In his initial decision, the administrative judge explained that appellant Bottini has not
      served any portion of his 40-day suspension, and that appellant Goeke has only served
      1 day. ID at 4-5. Despite the fact that neither appellant has served more than 14 days
      in a nonpay status, the administrative judge concluded that the Board has jurisdiction
      over these appeals because “the agency’s actions bear all the attributes of finality”
      discussed in Murray v. Department of Defense, 92 M.S.P.R. 361, ¶ 12 (2002), and
      because the agency “has given no indication that it will not eventually carry out the
      suspensions, at least if they are not reversed.” ID at 5-6. In Murray, the Board held
      that it had jurisdiction over a suspension in excess of 14 days which had been stayed
      pending the employee’s Board appeal. 92 M.S.P.R. 361, ¶¶ 12-13. The agency has not
      challenged the administrative judge’s findings on review or contested the Board’s
      jurisdiction over these appeals, and we agree with the administrative judge that the
      Board has jurisdiction over both appeals challenging the appellants’ suspensions. See
      ID at 4-6.
                                                                                      9

      designated proposing official after he authored his memorandum explaining why
      he believed that OPR’s findings of reckless professional misconduct were not
      supported by preponderant evidence. Secondly, we agree with the administrative
      judge that the agency committed harmful procedural error when it appointed a
      member of management, rather than a rank-and-file attorney, to serve as the
      proposing official. We address each error in turn.
      The agency replaced the proposing official after he authored his memorandum
      explaining why he believed OPR’s findings of reckless professional misconduct
      were not supported.
¶14         The agency argued to the administrative judge that the proposing official
      never reached a firm decision as to whether OPR’s findings were supported by
      the evidence or the law, see ID at 18-19; see also Goeke IAF, Tab 66 at 79-80.
      However, as explained below, we find that the PMRU attorney’s memorandum is
      tantamount to a decision to propose no discipline.     We likewise find that the
      agency would have been bound by the PMRU attorney’s proposal to issue no
      discipline or lesser discipline. See Bross, 389 F.3d at 1218; see also Boddie v.
      Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987). As a result, we
      conclude that, pursuant to Bross and Boddie, the agency committed harmful error
      by replacing the PMRU attorney after he authored and disseminated his
      memorandum.      See Bross, 389 F.3d at 1218; see also Boddie, 827 F.2d
      at 1579-80.
¶15         In Boddie, the Federal Circuit held that the agency committed harmful error
      when it did not follow its internal disciplinary procedure, which established that
      “[d]iscipline of employees is a line management responsibility and should be
      effected at the lowest practical supervisory level.”    827 F.2d at 1579.     The
      employee’s first-line supervisor in that case was not in favor of disciplining the
      employee, and after he was pressured into proposing the employee’s demotion,
      the agency removed him from his role as the proposing official and appointed a
      higher-level official who proposed a more severe demotion. Id. at 1579-80. In
                                                                                          10

      that case, the record reflected that the original proposing official “gave directions
      for [the] proposed charge to be put into written form . . . [and] it was so prepared
      and he signed it.” Id. at 1579. Under those circumstances, the court held that it
      was “wholly improper” for the agency to replace the original proposing official
      after its higher-level managers “completely failed to persuade” him to issue the
      level of discipline that they thought was most appropriate. Id. at 1579-80.
¶16         Although the Federal Circuit suggested in Boddie that the point at which
      the agency would be bound by the proposal of the original official was the point
      at which he had “begun to consider the charge and discipline, if any, to be
      levied,” id., in Bross, the Federal Circuit clarified that “Boddie only bars a
      change in the proposing and deciding official after the lower-level official
      reaches a decision,” see Bross, 389 F.3d at 1218.        Accordingly, in Bross, the
      court found that the agency did not commit harmful error when it replaced the
      original proposing official because he “had not yet reached a decision as to the
      appropriate penalty” at the point in time he was removed from this role. Id.
¶17         Here, we find that the PMRU attorney’s memorandum disagreeing with
      OPR’s findings of reckless professional misconduct qualifies as a decision on the
      proposed adverse action for purposes of precluding the agency from appointing a
      new proposing official under the standards articulated in Bross and Boddie. As
      noted, the PMRU attorney’s recommendation is contained in a lengthy, thorough,
      detailed memorandum containing not only factual and legal citations, but also
      over 370 footnotes supporting his conclusions and recommendations. Goeke IAF,
      Tab 5, Subtab 4c, Ex. 2. Although the memorandum was not dated, it bore the
      PMRU attorney’s signature, 6 was prepared on agency letterhead, and most


      6
        The agency posited below that the PMRU attorney’s memorandum was an incomplete
      draft because, inter alia, it was undated, simultaneously addressed the conduct of both
      appellants, contained “some blanks that still need[ed] to be filled,” such as names and
      dates, and only bore an electronic copy of the attorney’s signature which was included
      as a default on all of the draft documents he produced. See Goeke IAF, Tab 66 at 80.
                                                                                          11

      importantly, contained a thorough and complete recommendation which sufficed
      to allow the PMRU Chief to consider, and reject, the PMRU attorney’s reasons
      for concluding that OPR’s findings of reckless professional misconduct were not
      supported by a preponderance of the evidence.          Thus, we conclude that the
      memorandum constituted a decision from the PMRU attorney “on the adverse
      action” for the purpose of precluding the agency from removing him as the
      proposing official and appointing another agency official to serve in his place.
      See Bross, 389 F.3d at 1218; see also Boddie, 827 F.2d at 1579-80.
¶18         We note, moreover, that, although the memorandum begins with a summary
      suggesting that OPR’s findings of reckless professional misconduct should not be
      adopted, the memorandum concludes with decisive language advocating that no
      disciplinary action is warranted. Goeke IAF, Tab 5, Subtab 4c, Ex. 2 (“Even had
      I   concluded   that   reckless   misconduct   had   occurred,   all   of   the   same
      concerns . . . would have counseled in favor of a low level of discipline,” and “it
      is clear to me that no amount of ‘discipline’ . . . would be likely to accomplish
      any further deterrence of future misconduct[.]”).        Thus, notwithstanding the
      agency’s argument below that the PMRU attorney’s memorandum was only an
      internal recommendation as to how the appellants’ misconduct should be
      processed within the agency, Goeke IAF, Tab 66 at 80-81, we find that the
      memorandum is tantamount to a proposal from the PMRU attorney that no
      discipline should be issued.      This case is therefore unlike Bross, where the
      original proposing official was equivocal as to the appropriate level of discipline
      that should be imposed at the time he was removed from his role as the proposing
      official, see Bross, 389 F.3d at 1218, and is more akin to Boddie, where the
      agency improperly replaced the proposing official after a proposal imposing a


      We find that the substance and thoroughness of the recommendation outweighs any
      suggestion that the document is other than a substantially finished and completed work
      product.
                                                                                      12

      lower-level of discipline had been prepared and signed, see Boddie, 827 F.2d
      at 1579-80.
¶19         In addition, the agency’s disciplinary process expressly provides that the
      PMRU Chief is charged with reviewing and making a preliminary determination
      of whether OPR’s “finding of misconduct is supported by the evidence and
      applicable law,” and the PMRU attorney, as the proposing official, is charged
      with conducting a first-level review of the relevant Douglas factors and
      proposing some level of discipline, if any. Goeke IAF, Tab 5, Subtab 4i at 2.
      Here, after the PMRU Chief reviewed OPR’s ROI and made a preliminary
      determination that its findings of reckless professional misconduct should be
      accepted, the PMRU attorney conducted a second review of these findings. Id.,
      Subtab 4c, Ex. 2. Had the PMRU disciplinary process been properly followed,
      the PMRU attorney would likely have proposed some level of discipline less than
      that imposed by the PMRU Chief, and it is equally likely that he would have
      proposed no discipline at all—based upon his conclusions that, inter alia, the
      disclosure failures were not the direct result of the appellants’ professional
      misconduct, but rather were the culmination of a series of errors on the part of
      several agency officials.    See ID at 17 (citing hearing testimony of PMRU
      attorney); see also Goeke IAF, Tab 5, Subtab 4c, Ex. 2 (PMRU attorney
      memorandum concluding that “it is clear to me that no amount of ‘discipline,’
      such as a letter of reprimand, or a suspension, would be likely to accomplish any
      further deterrence of future misconduct than their involvement in this prosecution
      and this misconduct investigation has already done”); Goeke IAF, Tab 5,
      Subtab 4i at 3 (“After review of the Douglas factor information, the [PMRU
      attorney] will decide whether disciplinary action is warranted.     If the [PMRU
      attorney] determines that no disciplinary action is warranted, [he] will notify the
      subject attorney and the [PMRU Chief] . . . .”).
¶20         We do not find that either the substance of the PMRU attorney’s
      memorandum or his legal analysis contained therein affects our conclusion. In
                                                                                    13

his memorandum, the PMRU attorney argued, inter alia, that the PMRU did not
have the authority to discipline the appellants because their conduct did not rise
to the level of reckless professional misconduct and that OPR’s findings should
not be accepted. Goeke IAF, Tab 5, Subtab 4c, Ex. 2. The tenor of the PMRU
attorney’s memorandum, admittedly, appears to focus more on the question of
whether the appellants engaged in actionable misconduct rather than to assess,
under Douglas, what level of discipline, if any, was warranted. Id. However, in
creating its disciplinary procedures, the agency specifically envisioned the
possibility that the PMRU attorney, as the proposing official, would “decide
whether disciplinary action [was] warranted” after reviewing the Douglas factors,
and it empowered the proposing official with the discretion to propose that no
disciplinary action be taken. Id., Subtab 4i at 3. The Board has long held that the
most important of the Douglas factors is the nature and seriousness of the
offense. Raco v. Social Security Administration, 117 M.S.P.R. 1, ¶ 14 (2011).
Under the agency’s disciplinary process, the PMRU attorney could have
incorporated his concerns about the nature of the misconduct levied against the
appellants by OPR into his Douglas factors analysis—including his belief that
OPR’s findings of reckless professional misconduct were not supported by the
evidence or the law—and he could have relied upon these concerns in
“determin[ing] that no disciplinary action [was] warranted[.]” Goeke IAF, Tab 5,
Subtab 4i at 3. We find that had the agency’s disciplinary process been followed,
the PMRU attorney should have included among his Douglas factors analysis his
belief that the severity and nature of the appellants’ conduct did not rise to the
level of professional misconduct, and he should have issued a disciplinary
proposal, including the possibility of proposing that no disciplinary action was
warranted, reflecting these conclusions. 7        See Lee v. Department of the

7
 Because we decide the appellants’ appeals on the basis of harmful procedural error,
our decision is tied inextricably to the agency’s specific policies which empowered the
                                                                                           14

      Navy, 6 M.S.P.R. 355, 357 (1981) (reversing a removal and imposing no
      discipline because no lesser penalty listed in chapter 75 of Title 5 would satisfy
      the efficiency of the service requirements of 5 U.S.C. §§ 7503(a) and 7513(a)).
¶21         We therefore conclude that the agency’s deviation from its PMRU
      disciplinary process led to a different result than it would have, had it followed
      its process.   See Canary, 119 M.S.P.R. 310, ¶ 12 (finding that an agency’s
      substitution of a proposing official led to the imposition of more severe discipline
      and constituted harmful error).     We are therefore constrained to find that this
      procedural error was harmful to the appellants’ interests.
      The agency designated the PMRU Chief, rather than a subordinate PMRU
      attorney, to serve as the proposing official.
¶22         The administrative judge found that the policy the agency established for
      the discipline of attorneys for intentional or reckless professional misconduct
      required that the proposing official be a PMRU attorney, and no express
      provision or any reasonable reading of the procedures allowed for anyone other to
      so serve.   ID at 7-9.   The administrative judge further found, contrary to the
      agency’s argument, that the delegation of authority to the PMRU Chief did not
      override the procedures, ID at 10-13, and that the delegation does not support a
      different interpretation of the agency’s policy, ID at 13-16.         Finally, for the
      reasons we have already addressed, the administrative judge found that the
      agency’s error in designating the PMRU Chief to serve as the proposing official
      in this case was harmful. ID at 16-19. We have considered the agency’s contrary
      arguments on review, but find that they present no reason to disturb the


      proposing official to propose discipline, ranging from no discipline to removal, upon
      receiving OPR’s findings of professional misconduct. Goeke IAF, Tab 5, Subtab 4i
      at 3. We only hold that, under the agency’s disciplinary process, the proposing official
      should have incorporated his concerns about OPR’s professional misconduct findings
      into his disciplinary proposal rather than outline them in an internal memorandum
      questioning whether the PMRU had the authority to discipline the appellants in the first
      instance.
                                                                                         15

      administrative judge’s well-reasoned findings.        See Crosby v. U.S. Postal
      Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
      administrative judge’s findings where he considered the evidence as a whole,
      drew appropriate references, and made reasoned conclusions); see also Broughton
      v. Department of Health & Human Services, 33 M.S.P.R.              357, 359 (1987)
      (same).
¶23         In conclusion, in sustaining the initial decision, as modified, we find two
      instances of harmful procedural error and do not reach the merits of the
      substantive charges against the appellants. It may seem at first glance to defy
      common sense not to subject individuals engaged in what was characterized as
      reckless behavior to disciplinary action, especially when that behavior so publicly
      compromised the justice system with the consequence of interfering with the
      electoral process.    However, the fact remains that the Department of Justice
      voluntarily created and adopted a disciplinary process not required by any
      external law, rule, or regulation, and allowed that process to evolve in practice
      over time.   This process can be abandoned or modified prospectively by the
      agency at will.      But once adopted and until modified, we are bound by our
      controlling courts to enforce it. See Romero v. Department of Defense, 527 F.3d
      1324, 1328-29 (Fed. Cir. 2008) (citing Department of the Navy v. Egan, 484 U.S.
      518, 530-31 (1988)).

                                            ORDER
¶24         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).
¶25         We ORDER the agency to cancel the appellants’ suspensions. The agency
      must complete this action no later than 20 days after the date of this decision.
¶26         We also ORDER the agency to pay the appellants the correct amount of
      back pay, interest on back pay, and other benefits under the Office of Personnel
                                                                                       16

      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellants to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellants the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶27         We further ORDER the agency to tell the appellants promptly in writing
      when it believes it has fully carried out the Board’s Order and to describe the
      actions it took to carry out the Board’s Order. The appellants, if not notified,
      should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶28         No later than 30 days after the agency tells the appellants that it has fully
      carried out the Board’s Order, each appellant may file a petition for enforcement
      with the office that issued their initial decision in these appeals if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶29         For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
                                                                                 17

                      NOTICE TO THE APPELLANTS
                   REGARDING YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
§§ 1201.201, 1202.202, and 1201.203.             If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.

                  NOTICE TO THE APPELLANTS REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the
United States 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 as well as other sections of the
                                                                               18

United States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
                                                     DFAS CHECKLIST
                                     INFORMATION REQUIRED BY DFAS IN
                                    ORDER TO PROCESS PAYMENTS AGREED
                                      UPON IN SETTLEMENT CASES OR AS
                                       ORDERED BY THE MERIT SYSTEMS
                                            PROTECTION BOARD
          AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN
                                          SETTLEMENT CASES
    CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
        OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
    1. Statement if Unemployment Benefits are to be deducted, with dollar amount,
           address and POC to send.
    2. Statement that employee was counseled concerning Health Benefits and TSP
          and the election forms if necessary.
    3. Statement concerning entitlement to overtime, night differential, shift
         premium, Sunday Premium, etc, with number of hours and dates for each
         entitlement.
    4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
           System), a statement certifying any lump sum payment with number of
           hours and amount paid and/or any severance pay that was paid with dollar
           amount.
    5. Statement if interest is payable with beginning date of accrual.

    6. Corrected Time and Attendance if applicable.

       ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
     a. Outside earnings with copies of W2's or statement from employer.
     b. Statement that employee was ready, willing and able to work during the period.
     c. Statement of erroneous payments employee received such as; lump sum leave,
     severance pay, VERA/VSIP, retirement annuity payments (if applicable) and if
     employee withdrew Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification
of the type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to
process payments/adjustments agreed on in Back Pay Cases (settlements,
restorations) or as ordered by the Merit Systems Protection Board, EEOC,
and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
       information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
      a.    Employee name and social security number.
      b.    Detailed explanation of request.
      c.    Valid agency accounting.
      d.    Authorized signature (Table 63)
      e.    If interest is to be included.
      f.    Check mailing address.
      g.    Indicate if case is prior to conversion. Computations must
            be attached.
      h.    Indicate the amount of Severance and Lump Sum Annual Leave
            Payment to be collected. (if applicable)
Attachments to AD-343
      1. Provide pay entitlement to include Overtime, Night Differential, Shift
             Premium, Sunday Premium, etc. with number of hours and dates for
             each entitlement. (if applicable)
      2. Copies of SF-50's (Personnel Actions) or list of salary
             adjustments/changes and amounts.
      3. Outside earnings documentation statement from agency.
      4. If employee received retirement annuity or unemployment, provide
             amount and address to return monies.
      5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
      6. If employee was unable to work during any or part of the period
             involved, certification of the type of leave to be charged and number
             of hours.
      7. If employee retires at end of Restoration Period, provide hours of Lump
             Sum Annual Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases:
(Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
      a.    Must provide same data as in 2, a-g above.
      b.    Prior to conversion computation must be provided.
      c.    Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact
NFC’s Payroll/Personnel Operations at 504-255-4630.
