                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIEL L. EMMERICH,                             DOCKET NUMBER
                   Appellant,                        DA-0752-14-0124-I-2

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: January 23, 2015
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Ronald H. Tonkin, Esquire, Houston, Texas, for the appellant.

           Aditi Sehgal, and Katherine Meng, Washington, D.C., for the agency.


                                           BEFORE

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


                                       FINAL ORDER

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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.           Except as
     expressly MODIFIED by this Final Order, we AFFIRM the initial decision.
¶2         The agency removed the appellant from his position as a Criminal
     Investigator in the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
     based on charges of lack of candor (two specifications) and failure to follow
     procedures (four specifications). 2      MSPB Docket No. DA-0752-14-0124-I-1,
     Initial Appeal File (IAF), Tab 12 at 37-43. The charges concerned the appellant’s
     participation in the investigation of a suspected narcotics transaction involving a
     confidential informant and 300 pounds of marijuana outside of ATF jurisdiction.
     Id. The appellant appealed his removal, and the administrative judge found that
     the agency proved all specifications of the charges by preponderant evidence, and

     2
       The agency identified the following two specifications in support of the lack of candor
     charge: (1) on or about February 13, 2013, the appellant was less than truthful to
     internal affairs investigators when he advised his superior about a meeting with a
     confidential informant; and (2) the appellant misled his supervisor regarding his
     planned activities with the confidential informant on November 20, 2012. IAF, Tab 12
     at 83. The agency identified the following four specifications in support of the failure
     to follow procedures charge: (1) the appellant failed to follow procedures by not
     reporting a threat to a confidential informant; (2) he failed to follow procedures by not
     reporting a threat made against him and his family; (3) he failed to follow procedures
     by not having an approved operational plan when he became involved in a suspected
     narcotics transaction; and (4) he failed to follow procedures by not having approval
     from the Division Director prior to conducting an investigation that was outside of, but
     related to, ATF jurisdiction. Id. at 84.
                                                                                             3

     that the removal penalty was reasonable. 3 IAF, Tab 1; MSPB Docket No. DA-
     0752-14-0124-I-2, Refiled Appeal File (RAF), Tab 8, Initial Decision (ID). The
     appellant filed a petition for review challenging the administrative judge’s
     decision to sustain the charges and affirm the agency’s removal decision. Petition
     for Review (PFR), Tab 1.        The agency filed a response in opposition to the
     appellant’s petition for review. 4 PFR File, Tab 3.
     The appellant failed to prove that the administrative judge erred in affirming the
     lack of candor charge.
¶3         In his petition for review, the appellant argues that the administrative judge
     should have dismissed the charges. PFR File, Tab 1 at 5, 10. Regarding the lack
     of   candor   charge,   the   appellant    argues   that   the     administrative    judge
     misinterpreted the facts underlying the charge and sustained the charge based on
     an irrelevant discrepancy concerning the exact date on which he informed his
     supervisor about his plans with a confidential informant.              Id. at 4-5.    The
     appellant further argues that “[t]here is no deception alleged in the charge or in
     evidence regarding when the conversations took place.” Id. at 4.
¶4         The contours and elements of a lack of candor charge depend upon the
     particular context and conduct involved. See Ludlum v. Department of Justice,
     278 F.3d 1280, 1284 (Fed. Cir. 2002). Lack of candor “may involve a failure to
     disclose something that, in the circumstances, should have been disclosed in order
     to make the given statement accurate and complete.”              Id.   “Although lack of
     candor necessarily involves an element of deception, ‘intent to deceive’ is not a
     separate element of that offense—as it is for ‘falsification.’” Id. at 1284-85.

     3
       The administrative judge dismissed the appellant’s initial appeal without prejudice and
     the appellant subsequently refiled his appeal. Emmerich v. Department of Justice,
     MSPB Docket No. DA-0752-14-0124-I-1, IAF, Tab 25, Initial Decision; MSPB Docket
     No. DA-0752-14-0124-I-2, Refiled Appeal File (RAF), Tab 1.
     4
       The appellant filed an additional pleading on October 30, 2014, which the Board
     rejected because the Board’s regulations do not allow it and because he did not request
     leave from the Clerk of the Board by filing a motion describing the nature and need for
     the additional pleading. PFR File, Tab 4; see 5 C.F.R. § 1201.114 (a)(5).
                                                                                         4

¶5        Upon reviewing the context and conduct underlying the agency’s lack of
     candor charge, as set forth in the agency’s proposal and decision notices, we
     disagree    with   the   appellant’s   argument   that   the    administrative   judge
     misinterpreted the facts underlying the charge. The administrative judge did not
     sustain the lack of candor charge based on an irrelevant date discrepancy; rather,
     he sustained the charge because he found that the agency proved the merits of the
     charge by preponderant evidence. Specifically, the administrative judge found
     that the appellant made an inaccurate statement to internal affairs investigators
     when he swore that, on November 20, 2012, he notified his supervisor that he was
     going to meet with a Mission Police Department Narcotics Officer and let his
     confidential informant pass along information regarding a stash house. ID at 12.
     The administrative judge also found that the appellant misled his supervisor about
     his planned activities with his confidential informant on November 20, 2012. ID
     at 12-13.
¶6        Moreover, in reaching his decision, the administrative judge found that the
     appellant’s testimony was less credible than the testimony of his supervisor and
     another special agent on these issues. See ID at 12 (citing Hillen v. Department
     of the Army, 35 M.S.P.R. 453, 458-62 (1987)). The Board must give deference to
     an administrative judge’s credibility determinations when they are based,
     explicitly or implicitly, on the observation of the demeanor of witnesses
     testifying at a hearing; the Board may overturn such determinations only when it
     has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
     288 F.3d 1288, 1301 (Fed. Cir. 2002).        The credibility determinations of an
     administrative judge are virtually unreviewable on appeal. See, e.g., Thomas v.
     U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011).             Although the appellant
     attempts to deflect attention away from the administrative judge’s well-reasoned
     findings and demeanor-based credibility determinations, the appellant does not
     provide a sufficiently sound reason to disturb the administrative judge’s finding
                                                                                     5

     that the agency proved the lack of candor charge by preponderant evidence. ID
     at 2-3.
     The appellant failed to prove that the administrative judge erred in affirming the
     failure to follow procedures charge.
¶7         Regarding the failure to follow procedures charge, the appellant appears to
     argue that he did not follow the procedures identified by the agency because those
     procedures were inapplicable based on his version of the actions that gave rise to
     the agency’s charge. PFR File, Tab 1 at 5-6. However, the appellant’s argument
     on review amounts to mere disagreement with the findings of the administrative
     judge regarding the merits of the proven charge.          See ID at 13-15.    The
     administrative judge sustained this charge based, in part, on the appellant’s
     testimony admitting that he failed to follow procedures when he did not report
     threats to his confidential informant, himself, and his family. ID at 13.
¶8         The administrative judge also found that the appellant violated agency
     procedures based on undisputed evidence that the appellant did not have an
     operational plan for engaging in a narcotics transaction and he did not seek or
     obtain verbal or written approval to conduct an investigation regarding
     300 pounds of marijuana. ID at 14. The administrative judge found that ATF
     Order 3210.1B required the preparation of an operational plan for, among other
     things, an undercover meeting and also found that the appellant’s testimony that
     he was not engaged in any undercover work was not credible. ID at 14. The
     administrative judge further found that, under ATF Order 3210.7C, the appellant
     required approval from the senior agent in charge to conduct the drug
     investigation because drugs are not under the jurisdiction of the ATF. ID at 14.
     We discern no reason to reweigh the evidence or substitute our assessment of the
     record evidence for that of the administrative judge. 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 when the administrative judge considered the
     evidence as a whole, drew appropriate inferences, and made reasoned
                                                                                        6

      conclusions); see also Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (same).
¶9         On review, the appellant also reasserts his argument that the administrative
      judge should have merged certain specifications within both charges. PFR File,
      Tab 1 at 4-5; IAF, Tab 22 at 2. However, the merger issue was not included
      among the issues in dispute identified in the administrative judge’s prehearing
      conference summary, and the administrative judge expressly warned the parties
      that additional issues were precluded in the appeal. IAF, Tab 23 at 1. Although
      the administrative judge advised the parties to express any disagreement with the
      summary by filing an objection or a motion to supplement the summary by a
      specific deadline, the appellant did not object to the exclusion of the merger issue
      from the summary. See id. at 2. Accordingly, the Board will not consider the
      merger issue because it is not properly before the Board. See Crowe v. Small
      Business Administration, 53 M.S.P.R. 631, 634-35 (1992).
      The appellant failed to prove that the agency committed harmful error and
      violated his due process rights.
¶10        On review, the appellant argues that the administrative judge ignored his
      argument that the deciding official’s failure to recuse himself constituted harmful
      error because he was also the deciding official in a prior disciplinary action
      against the appellant. PFR File, Tab 1 at 7. The administrative judge’s failure to
      mention all of the evidence of record does not mean that she did not consider it in
      reaching her decision. See Marques v. Department of Health & Human Services,
      22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶11        Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an agency’s
      decision to impose an adverse action if the employee can show “harmful error in
      the application of the agency’s procedures in arriving at such decision.” Doe v.
      Department of Justice, 121 M.S.P.R. 596, ¶ 14 (2014).           In the prehearing
      conference summary, the administrative judge ordered the appellant to submit
      specific evidence and argument to support his affirmative defense of harmful
                                                                                          7

      error, including a copy of the rule or regulation that allegedly prohibited the
      deciding official from serving in two disciplinary matters. IAF, Tab 23 at 2. The
      administrative judge also informed the appellant that his affirmative defense
      would be waived if he failed to submit the required information. Id.
¶12         The appellant did not provide the required information to the administrative
      judge, and on review the appellant has not identified any agency rule or
      regulation that the agency violated by allowing the deciding official to serve in
      two disciplinary matters. 5 Moreover, the appellant submits no new evidence or
      argument proving that the deciding official’s failure to recuse himself was in any
      way improper or constituted error. We therefore find that the appellant failed to
      prove his claim of harmful error and he has not shown that the administrative
      judge’s failure to address this claim in the initial decision prejudiced his
      substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
      282 (1984) (an adjudicatory error that is not prejudicial to a party’s substantive
      rights provides no basis for reversal of an initial decision).
¶13         On review, the appellant also argues that there is a due process issue
      because “[t]here is an unresolved issue of fact . . . as to whether the Deciding
      Official actually relied upon Appellant’s past [discipline] in rendering his penalty
      analysis prior to rendering his decision.” PFR File, Tab 1 at 7. Procedural due
      process guarantees are not met if the employee has notice of only certain charges
      or portions of the evidence and the deciding official considers new and material
      information; therefore, it is constitutionally impermissible to allow a deciding
      official to receive additional material that may undermine the objectivity required

      5
        On appeal, the appellant informed the administrative judge that he could not provide
      the requested information because he had no access to the agency’s regulations. IAF,
      Tab 24. However, the administrative judge in her acknowledgment order properly
      informed the appellant and his attorney of the available discovery procedures, and the
      appellant could have attempted to obtain the required information through discovery.
      IAF, Tab 2 at 2-4. Thus, the appellant may not now claim harm by the agency’s failure
      to assist voluntarily in his proceedings before the Board. See Kinsey v. U.S. Postal
      Service, 12 M.S.P.R. 503, 505-06 (1982).
                                                                                        8

      to protect the fairness of the process.     Stone v. Federal Deposit Insurance
      Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999); see Ward v. U.S. Postal
      Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011) (remanding the case for the Board
      to consider whether the agency’s procedural error, in considering the appellant’s
      alleged prior instances of misconduct without including these incidents in the
      notice of proposed removal, constituted harmful error). In this case, however, the
      appellant has not shown that the deciding official violated his due process rights
      by relying on constitutionally-impermissible information.
¶14        The agency’s notice of proposed removal specifically informed the
      appellant that the agency considered his 40-day suspension in October 2012,
      which occurred approximately 30 days before the misconduct referenced in the
      proposed removal notice, and his 2011 letter of reprimand. IAF, Tab 12 at 87.
      The appellant has not identified any impermissible information considered by the
      administrative judge that was not included in the notice of proposed removal.
      PFR File, Tab 12 at 41, 87. He merely argues that the deciding official was
      aware of his prior discipline “since he was the Deciding Official on [the
      appellant’s] prior disciplinary matter.” PFR File, Tab 1 at 7.
¶15        To establish a due process violation based on the identity of the deciding
      official, the appellant must make “specific allegations indicating that the agency’s
      choice of the deciding official made the risk of unfairness to the appellant
      ‘intolerably high.’”   Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 9
      (2013). The appellant has not met that burden here. The mere fact that the same
      deciding official presided over both of the appellant’s disciplinary actions and is
      familiar with his background and prior conduct does not violate his due process
      rights. See id. We therefore find that the appellant has not established that the
      deciding official violated his due process rights based on his mere knowledge of
      the appellant’s prior misconduct.
                                                                                      9

      The appellant failed to prove that the removal penalty was unreasonable.

¶16        On review, the appellant argues that the administrative judge ignored the
      evidence he submitted proving that the agency gave similarly-situated employees
      lesser penalties and that the removal penalty was unreasonable. PFR File, Tab 1
      at 7-9. The administrative judge did not discuss the appellant’s disparate penalty
      argument in the initial decision. We therefore MODIFY the initial decision to
      address this issue and find that the appellant has not met his burden concerning
      his disparate penalty claim.
¶17        Where, as here, all of the agency’s charges are sustained, the agency’s
      penalty determination is entitled to deference and should be reviewed only to
      determine whether it is within the parameters of reasonableness. See Payne v.
      U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). The appellant’s allegation that
      the agency treated him disparately to another employee, without a claim of
      prohibited discrimination, is an allegation of disparate penalties to be proven by
      the appellant and considered by the Board in determining the reasonableness of
      the penalty. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5
      (2010); see also Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
      (1981).   The appellant has the initial burden of showing that there is enough
      similarity between both the nature of the misconduct and other factors to lead a
      reasonable person to conclude that the agency treated similarly-situated
      employees differently. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 20,
      24 (2012).   If he does so, the agency must prove a legitimate reason for the
      difference in treatment by a preponderance of the evidence before the penalty can
      be upheld. Id.
¶18        On review, the appellant alleges that four similarly-situated employees
      received lesser discipline for charges that included lack of candor and
                                                                                             10

      falsification. 6 PFR File, Tab 1 at 7-9. However, of the four employees identified
      by the appellant as receiving lesser discipline for any of the charges underlying
      his removal, the agency did not sustain those charges against three of those
      employees. 7 IAF, Tab 21 at 17. Moreover, although the agency sustained a lack
      of candor charge against one of those employees and suspended her, she did not
      hold a position in the same job series as the appellant. See PFR File, Tab 1 at 8;
      see also IAF, Tab 21 at 16 (disciplinary history of employee M.V.).                   This
      distinction is significant because the appellant was a special agent in the 1811 job
      series, which had Giglio implications that the deciding official considered in
      making his removal decision. PFR File, Tab 3 at 8; IAF, Tab 12 at 41-42; see
      Giglio v. United States, 405 U.S. 150 (1972) (requiring prosecutors to provide
      defendants with information that may be used to impeach a witness’s character or
      credibility). Citing Giglio, the deciding official determined that the appellant’s
      lack of candor compromised his ability to meet his responsibilities as a federal
      law enforcement officer because he might be subject to impeachment if he were
      to testify in any federal prosecution. IAF, Tab 12 at 41-42. We therefore find
      that the appellant has not met his initial burden to show that there is enough
      similarity between both the nature of the misconduct and other factors to lead a
      reasonable person to conclude that the agency treated similarly-situated
      employees differently. See Boucher, 118 M.S.P.R. 640, ¶¶ 20, 24.
¶19           The appellant also argues that the removal penalty was unreasonable and
      the administrative judge’s decision to sustain his removal was arbitrary and
      capricious. PFR File, Tab 1 at 9. However, the agency’s Guide for Offenses and
      Penalties states that the penalty for the first lack of candor offense ranges from
      reprimand to removal. IAF, Tab 12 at 119. We therefore find that removal is
      within the range of reasonable penalties for the appellant’s proven misconduct,
      6
       The comparators identified by the appellant will be referred to by their initials, C.K.,
      G.O., S.S., and M.V. PFR File, Tab 1 at 8.
      7
          See IAF, Tab 21 at 17 (disciplinary history of employees S.S., C.K., and G.O.).
                                                                                        11

and we find no reason to disturb the initial decision affirming his removal. See
Carlton v. Department of Justice, 95 M.S.P.R. 633, ¶ 8 (2004) (finding that the
removal penalty was reasonable for the appellant’s lack of candor, which could be
used against him if he was called to testify in his capacity as a law enforcement
officer). 8

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
       The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.    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



8
  On November 24, 2014, the appellant filed a motion to supplement the record to
address the Federal Circuit’s October 21, 2014 decision in Wrocklage v. Department of
Homeland Security, 769 F.3d 1363 (Fed. Cir. 2014). We deny the appellant’s motion.
However, we have reviewed the court’s decision in Wrocklage and find that it is not
dispositive in this case. Specifically, the Federal Circuit’s decision in Wrocklage did
not alter the legal standard applicable to a lack of candor charge; rather, it found that
the agency did not meet its burden of proving its lack of candor charge under the
specific factual circumstances in that case. Wrocklage, 769 F.3d at 1369-70. The facts
in this case differ significantly from those presented in Wrocklage. The lack of candor
charge in Wrocklage concerned the appellant’s statements regarding his alleged
possession of a Treasury Enforcement Communication System report and his alleged
unauthorized transmission of the report to an employee in Senator Carl Levin’s office.
Id. In finding that the agency failed to prove this charge, the court cited the appellant’s
explanation of his statements and his consistent, unrebutted testimony in support of his
statements. Id. at 1370. The concerns raised by the court in Wrocklage are not present
in this case. Significantly, as noted by the administrative judge, the appellant’s
explanation for his alleged lack of candor in this case is rebutted by record evidence,
including another employee’s declaration given under oath and text messages
documenting the appellant’s communications. ID at 2-13.
                                                                                 12

     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 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.
