                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SAREL SOLIS, 1                                   DOCKET NUMBER
                    Appellant,                   DA-0752-14-0082-I-1

             v.

DEPARTMENT OF JUSTICE,                           DATE: May 21, 2015
            Agency.



        THIS FINAL ORDER IS NO NPRECEDENTIAL 2

      Michael Meyrick, Esquire, Canon City, Colorado, for the appellant and the
        appellant’s widow.

      Jason Laeser, Esquire, Springfield, Virginia, for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
  On December 8, 2014, following the appellant’s death. the Board granted the
appellant’s representative’s motion to substitute the appellant’s widow, Ana Solis, as a
proper party in this matter pursuant to 5 C.F.R. § 1201.35. Petition for Review (PFR)
File, Tabs 3, 7. Ms. Solis will herein be referred to as “the appellant’s widow” and
Sarel Solis will be referred to as “the appellant.”
2
   A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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

                                      FINAL ORDER
¶1        The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 60-day suspension. Generally, we grant
     petitions such as this one only when:      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
     the facts of the case; the 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. See 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, and based on the following
     points and authorities, 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 appellant served as a criminal investigator with the Drug Enforcement
     Administration (DEA). Initial Appeal File (IAF), Tab 4, Subtab 4b. The agency
     proposed his removal on the charges of conduct unbecoming a DEA special agent
     and making false statements. Id., Subtab 4k. The appellant made an oral and
     written reply to the deciding official, who subsequently issued a decision letter
     imposing the removal. Id., Subtab 4d. The appellant filed a timely appeal of his
     removal; following a hearing, the administrative judge issued an initial decision
     sustaining the agency’s charges, but mitigating the removal to a 60-day
     suspension, finding that the deciding official did not conscientiously consider all
                                                                                        3

     of the relevant Douglas factors 3 and that therefore the penalty of removal
     exceeded the bounds of reasonableness under the facts of the case. IAF, Tab 30,
     Initial Decision (ID).
¶3         Specifically, the administrative judge found that the deciding official failed
     to adequately consider the appellant’s length of service with the agency,
     including his prior military service, and the positive performance reviews the
     appellant received before and after the misconduct at issue.             ID at 14.
     Additionally, the administrative judge found that the deciding official could not
     explain his conclusion that the agency had lost trust and confidence in the
     appellant, which the administrative judge found was undermined by the agency’s
     approving him for a volunteer assignment overseas requiring a higher security
     clearance and provid ing him with heightened responsibilities. ID at 14. Upon
     balancing the Douglas factors, the administrative judge found that the maximum
     reasonable penalty was a 60-day suspension. ID at 17. The administrative judge
     reached this conclusion in light of the appellant’s positive performance record,
     absence of disciplinary history, cooperation during the agency’s investigation,
     and admission of wrongdoing. ID at 15-16.
¶4         The agency has filed a petition for review of the initial decision arguing that
     the administrative judge erred in mitigating the removal penalty.       Petition for
     Review (PFR) File, Tab 1. On review, the agency contends that the deciding
     official properly balanced the relevant aggravating and mitigating factors and that
     he imposed a penalty within the bounds of reasonableness which should not have
     been mitigated. PFR File, Tab 1 at 8-14. The appellant has filed a response in
     opposition to the petition for review, and the agency has filed a reply. PFR File,
     Tabs 6, 9.
¶5         Where, as here, all of the agency’s charges are sustained, 4 the Board will
     review the agency-imposed penalty only to determine if the agency considered all
     3
      In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board set
     out a list of nonexhaustive factors for consideration in determ ining the penalty.
                                                                                           4

     the relevant factors and exercised management discretion within the tolerable
     limits     of    reasonableness.      See    Penland      v.   Department      of   the
     Interior, 115 M.S.P.R. 474, ¶ 7 (2010). In making this determination, 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. Id. The Board, however, will modify or mitigate an agency-
     imposed penalty where it finds that the agency failed to weigh the relevant factors
     or the penalty clearly exceeds the bounds of reasonableness. Id.
¶6            Upon our consideration of the agency’s arguments on review, we are not
     convinced that the administrative judge erred in mitigating the removal to a
     60-day suspension.        Like the administrative judge, we acknowledge the
     seriousness of the charges against the appellant, and we do not minimize their
     gravity. ID at 15; see, e.g., Reid v. Department of the Navy, 118 M.S.P.R. 396,
     ¶ 25 (2012) (falsification is a serious offense). The Board, however, has found
     that there is no per se rule as to the penalty to be imposed in such cases, and that
     the proper penalty must be determined on a case-by-case basis, considering the
     totality of the surrounding circumstances. Reid, 118 M.S.P.R. 396, ¶ 25. The
     Board has traditionally found the following Douglas factors to be of particular
     relevance in determining the reasonableness of a penalty in cases involving
     falsification:   (1) the nature of the offense and its relation to the appellant’s
     duties; (2) the appellant’s disciplinary record; (3) the effect of the offense on the
     appellant’s ability to perform at a satisfactory level; and (4) the mitigating factors
     surrounding the offense. Id., ¶ 26.


     4
       A cross-petition for review challenging the administrative judge’s decision to sustain
     the charges of m isconduct has not been filed. See PFR File, Tab 6. We have reviewed
     the administrative judge’s initial decision and find no reason to differ with his
     conclusions that the agency proved its charges and supporting specifications. ID at 6-
     10.
                                                                                      5

¶7        We concur with the administrative judge that the facts of this appeal do not
     support the agency’s imposed penalty. The record demonstrates that the appellant
     had a lengthy career with the agency during which he received outstanding
     performance evaluations and had no prior disciplinary history.        IAF, Tab 4,
     Subtab 4f at 9. Following the events leading to the issuance of the notice of
     proposed removal, moreover, the agency selected the appellant for a volunteer
     mission in Afghanistan involving heightened responsibilities, and he continued to
     receive outstanding performance evaluations from his immediate supervisors
     during this time. Id.; see also ID at 14-15 (citing hearing testimony). The Board
     has previously found that an agency’s decision to promote an employee following
     the occurrence of the misconduct at issue undermines the agency’s assertion of a
     complete loss of trust and confidence in the employee.           See Hovanec v.
     Department of the Interior, 67 M.S.P.R. 340, 346 (1995). We agree with the
     administrative judge that the appellant’s selection for a special overseas mission
     after the misconduct occurs belies the agency’s asserted lack of trust and
     confidence in the appellant and supports the mitigation of the removal to a lesser
     penalty. Id.; ID at 14, 16.
¶8        We further agree with the administrative judge that the appellant’s
     admission of wrongdoing and cooperation with the agency’s investigation,
     combined with his work performance, length of service, and prior honorable
     military service, weighs in favor of a penalty less severe than removal. See Boo
     v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 22 (2014) (expressions
     of remorse are mitigating factors indicative of rehabilitation); cf. Miller v.
     Department of Health & Human Services, 21 M.S.P.R. 341, 344 (1984) (removal
     is the most serious penalty available and the most harmful to the employee).
     Finally, we agree with the administrative judge that the comparator cases relied
     upon by the deciding official involving other instances of removal are sufficiently
     distinct from the facts of this case and do not bolster the agency’s argument for
     removing the appellant from service as opposed to imposing some lesser penalty.
                                                                                         6

      ID at 13-14; cf. Portner v. Department of Justice, 119 M.S.P.R. 365, ¶ 21 (2013)
      (observing that the conduct of identified comparators was arguably more serious
      than the appellant’s conduct).
¶9         In sum, we agree with the administrative judge that the deciding official did
      not adequately consider the aforementioned mitigating factors and that the
      penalty of removal exceeded the bounds of reasonableness under the totality of
      the circumstances. See Reid, 118 M.S.P.R. 396, ¶ 30 (overturning a removal for
      falsification because several mitigating factors were not sufficiently considered
      by the deciding official); Casias v. Department of the Army, 62 M.S.P.R. 130,
      132 (1994) (a penalty disproportionate to the offense must be mitigated). We
      AFFIRM the administrative judge’s initial decision mitigating the appellant’s
      removal to a 60-day suspension without pay.

                                            ORDER
¶10        We ORDER the agency to cancel the appellant’s removal and substitute in
      its place a 60-day suspension without pay effective October 29, 2013. See Kerr v.
      National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
      must complete this action no later than 20 days after the date of this decision.
¶11        We also ORDER the agency to pay the appellant’s widow the correct
      amount of back pay, interest on back pay, and other benefits under the Office of
      Personnel Management’s regulations, no later than 60 calendar days after the date
      of this decision. We ORDER the appellant’s widow 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 appellant’s widow
      the undisputed amount no later than 60 calendar days after the date of this
      decision.
                                                                                        7

¶12        We further ORDER the agency to tell the appellant’s widow promptly in
      writing when it believes it has fully carried out the Board's Order and of the
      actions it took to carry out the Board’s Order. The appellant’s widow, if not
      notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶13        No later than 30 days after the agency tells the appellant’s widow that it has
      fully carried out the Board’s Order, the appellant’s widow may file a petition for
      enforcement with the office that issued the initial decision on this appeal if the
      appellant’s widow believes that the agency did not fully carry out the Board’s
      Order. The petition should contain specific reasons why the appellant’s widow
      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).
¶14        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.

                       NOTICE TO THE APPELLANT 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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
      regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, 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
                                                                                  8

must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT 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 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
information regarding pro bono representation for Merit Systems Protection
                                                                             9

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:                            ______________________________
                                          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 B Y 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 app licable.
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 durin g the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicab le) 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.
