                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MCCARTHY BARNES, JR.,                           DOCKET NUMBER
                 Appellant,                          DC-0752-13-0357-M-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: February 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Frederic W. Schwartz, Jr., Esquire, Washington, D.C., for the appellant.

           Lundi McCarthy Shafiei, Esquire, and Steven J. Weiss, Esquire,
             Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his removal from Federal employment. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. 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).

                                      BACKGROUND
¶2        The following facts are undisputed.       The appellant was employed as a
     Police Officer, AD-0083-07, with the Pentagon Force Protection Agency (PFPA),
     Department of Defense, from December 8, 2008, until February 8, 2013. Initial
     Appeal File (IAF), Tab 4 at 23, 83. The agency proposed his removal based on a
     single narrative charge captioned Conduct Unbecoming a PFPA Police
     Officer. Id. at 43-46. The charge was based on his arrest for driving under the
     influence (DUI) after he lost control of his vehicle and it overturned. Id. at 43-
     44. The appellant pled guilty to a reduced charge of reckless driving. Id. at 44.
     He was sentenced to 6 months in jail with 5 months suspended and was allowed
     to serve the remainder of the sentence on weekends. Id. He also paid a fine of
     $2,500.00 with $1,500.00 suspended, was required to enroll in the Virginia
     Alcohol Substance Abuse Program (VASAP), and was issued a restricted driver’s
     license that allowed him only to commute to and from work. Id. After he orally
     replied to the charge, id. at 39-42, the deciding official completed an analysis of
                                                                                      3

     the relevant penalty factors and issued a decision sustaining his removal, id.
     at 24-38. He was removed effective February 8, 2013. Id. at 27.
¶3        On appeal, the appellant stipulated to most of the relevant facts regarding
     the incident.   IAF, Tab 22 at 2-5.   He stipulated that his blood alcohol level
     was .15, nearly double the legal limit. Id. at 5. He further stipulated that he had
     known prior to the issuance of his Virginia driver’s license that driving a vehicle
     while under the influence of alcohol is prohibited by law. Id.
¶4        The arresting deputy testified at the hearing. He recounted that he knew
     that the appellant was a police officer because the appellant had presented his
     credentials at the scene of the accident. Hearing Transcript (HT) at 10-11, 17.
     He stated that the appellant asked him several times, “How far [he] was going to
     take this?”     Id. at 18-19; IAF, Tab 4 at 62.     The deputy testified that he
     interpreted that question to mean that the appellant was looking for treatment
     different from that imposed on regular citizens who are arrested for DUI, but he
     also conceded that this was his opinion based on the appellant’s actions. HT
     at 19, 43-46. He further testified that when the magistrate told the appellant he
     would be held at the jail until sober, the appellant was “no longer calm,” but
     rather became argumentative. HT at 20-21.
¶5        The deputy testified to other aspects of the incident that were included in
     the charge. He testified that he had observed a crushed case of Bud Light beer in
     the middle of the road beside the vehicle. HT at 9; IAF, Tab 4 at 43. He also
     testified that, when asked to perform various field sobriety tests, the appellant
     stared at him in a “state of disbelief.” HT at 45. The appellant failed some of
     these tests. HT at 12-16; IAF, Tab 4 at 43. The deputy testified that the appellant
     initially refused to take a preliminary breath test. HT at 16-17. He also testified
     that he recovered the appellant’s off-duty weapon, which was not loaded. HT
     at 18; IAF, Tab 4 at 44.
¶6        The administrative judge found it more likely than not that the deputy
     testified accurately that the appellant sought special treatment because of his
                                                                                      4

     position as a police officer and that he argued with the magistrate. IAF, Tab 36,
     Initial Decision (ID) at 9-10. She sustained the charge of conduct unbecoming,
     ID at 11, and rejected the appellant’s claims of harmful procedural error or other
     violations of law, ID at 11-14.     She found that the penalty of removal was
     reasonable. ID at 14-24.
¶7         The finality date for the initial decision was March 28, 2014. ID at 24. The
     appellant filed his petition for review on March 31, 2014. Petition for Review
     (PFR) File, Tab 1. The Board dismissed the petition as untimely filed without
     good cause shown for the delay. Barnes v. Department of Defense, MSPB Docket
     No. DC-0752-13-0357-I-1, Final Order at 2, 6 (Sept. 3, 2014). The appellant
     sought review in the U.S. Court of Appeals for the Federal Circuit, where the
     court reversed the Board’s decision and remanded the appeal for further
     proceedings. Barnes v. Merit Systems Protection Board, No. 2015-3018 (Fed.
     Cir. Aug. 19, 2015). The appeal is now before the Board for consideration on the
     merits.

                                        ANALYSIS
     The administrative judge’s credibility determinations and findings of fact are
     entitled to deference.
¶8         While the appellant’s arrest and conviction are matters of public record, and
     he stipulated to several relevant facts regarding the incident, both the deciding
     official and the administrative judge relied upon additional facts to which the
     arresting deputy testified regarding the appellant’s conduct at the scene and later
     at the jail. IAF, Tab 4 at 24-24; ID at 9-11. On review, the appellant argues that
     the administrative judge improperly credited the deputy’s testimony. PFR File,
     Tab 1 at 9-12, 14-15. To resolve credibility issues, an administrative judge must
     identify the factual questions in dispute, summarize the evidence on each disputed
     question, state which version he believes, and explain in detail why he found the
     chosen version more credible, considering such factors as:       (1) the witness’s
     opportunity and capacity to observe the event or act in question; (2) the witness’s
                                                                                            5

     character; (3) any prior inconsistent statement by the witness; (4) a witness’s
     bias, or lack of bias; (5) the contradiction of the witness’s version of events by
     other evidence or its consistency with other evidence; (6) the inherent
     improbability of the witness’s version of events; and (7) the witness’s demeanor.
     Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
¶9         The administrative judge found that the deputy testified credibly. Although
     she did not address his demeanor, 2 she considered relevant Hillen factors in her
     findings.   ID at 9-10.   The administrative judge pointed out that the deputy’s
     contemporaneous report of the arrest, IAF, Tab 4 at 61-62, was consistent with
     his oral testimony at the hearing, ID at 10; see HT at 18-19. We note that the
     deputy’s report similarly addresses the appellant’s argumentativeness with the
     magistrate to which the deputy also testified. IAF, Tab 4 at 62; see HT at 20-22.
     The administrative judge also considered the appellant’s level of intoxication—
     nearly twice the legal limit—when the events occurred, and the effect that alcohol
     consumption might have had upon his perception and memory of the incident. ID
     at 10. The deputy interpreted the appellant’s behavior at the accident scene “to
     mean that he was looking for some sort of special treatment other than the
     procedure that an average citizen would be taken through when arrested for DUI.”
     HT at 19.    The deputy reasonably inferred the appellant’s intentions from his
     behavior at the scene of the accident and later at the jail. The appellant has not
     shown on review that the administrative judge’s credibility evaluations were
     incomplete, inconsistent with the weight of the evidence, and do not reflect the
     record as a whole, and thus, the Board may defer to them.              See Faucher v.
     Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004) (explaining that the
     Board may overturn an administrative judge’s demeanor-based credibility

     2
       The Board must defer 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).
                                                                                       6

      determinations when the judge’s findings are incomplete, inconsistent with the
      weight of the evidence, and do not reflect the record as a whole).

      The agency considered all the relevant penalty factors and exercised management
      discretion within the tolerable limits of reasonableness.
¶10        The bulk of the petition for review pertains to the appellant’s arguments
      that the deciding official incorrectly weighed the Douglas factors and imposed an
      excessively harsh penalty.   PFR File, Tab 1 at 7-24; see Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 305-06 (1981).       It is well-established that a
      penalty determination for employee misconduct is left to the sound discretion of
      the agency.   Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999). The
      agency is required to show only that the penalty it selected was reasonable. It is
      not required to show that the penalty selected was the best penalty. Martinez v.
      Department of Defense, 21 M.S.P.R. 556, 557-58 (1984), aff’d, 765 F.2d 158
      (Fed. Cir. 1985) (Table). Thus, in reviewing the penalty selected by an agency,
      the Board will determine only if the agency conscientiously considered all
      relevant factors and exercised management discretion within the tolerable limits
      of reasonableness. Douglas, 5 M.S.P.R. at 306. The Board will 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 exercised
      properly.   Id. at 302. The Board will not disturb an agency’s penalty if it is the
      maximum reasonable penalty that may be imposed after considering all of the
      relevant factors. Davis v. Department of the Treasury, 8 M.S.P.R. 317, 320-21
      (1981). Here, it is clear that the deciding official considered all of the relevant
      factors. IAF, Tab 4 at 25-26, 29-38; HT at 60-89, 91-92, 96-97, 121, 134, 138.
      The administrative judge likewise closely scrutinized the deciding official’s
      weighing of the Douglas factors. ID at 14-24.
¶11        We address here the appellant’s arguments regarding each of the factors he
      contests, but we first note a common theme reiterated throughout his discussion
                                                                                        7

      of the penalty factors: The appellant argues as if he committed a per se traffic
      violation, denying or minimizing his other misconduct, including his behavior at
      the scene of the accident and his encounter with the magistrate. See, e.g., PFR
      File, Tab 1 at 9-13. However, the agency addressed his overall conduct in the
      charge. IAF, Tab 4 at 43-44. His overall conduct thus must be considered for the
      penalty determination, particularly in light of his position as a law enforcement
      officer.   Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 8 (2001)
      (stating that law enforcement officials are held to a higher standard of conduct
      than other employees). Additionally, reckless driving calls into question the good
      judgment of a person convicted of that offense. According to the law of the state
      where the arrest occurred, the term “recklessly” suggests:
             [A] disregard by the driver . . . for the consequences of his act and an
             indifference to the safety of life, limb, or property. . . . Factors
             tending to show recklessness include erratic driving, the likelihood
             of injury to other users of the highways, lack of control of the
             vehicle, driving in excess of the speed limit, dangerous driving
             behavior, intoxication, and noncompliance with traffic markers.
      Blevins v. Commonwealth, 762 S.E.2d 396, 399 (Va. Ct. App. 2014); see Va.
      Code Ann. § 46.2-852.
¶12         Beyond minimizing his own misconduct, the appellant raises additional
      arguments concerning the deciding official’s findings for several of the Douglas
      factors. Regarding the first factor, the nature and seriousness of the offense and
      its relationship to his employment as a police officer, the appellant argues that he
      was not expected to enforce traffic or DUI laws in his role as a police officer.
      PFR File, Tab 1 at 12. He argues that nothing in law or regulation required him
      to be an example to the community and that the agency’s reliance on a provision
      of PFPA General Order 1000.3, Standards and Code of Conduct, which states that
      an officer’s off-duty conduct must reflect favorably on the department, was
      improper. Id. at 13; see IAF, Tab 4 at 84-87. He asserts that his offense “ha[d]
      nothing to do with sound judgment” and that his understanding of the effects of
                                                                                          8

      alcohol as a police officer was not superior to that of a lay person. Id. at 14. He
      further asserts that his actions were neither willful nor intentional, and instead, he
      acted unintentionally because he was under the influence of alcohol. 3 Id.
¶13         The appellant’s arguments regarding the second Douglas factor, his job
      level and type of employment, are in a similar vein. He argues that nexus does
      not exist between the agency’s mission and his offense. Id. at 16. He asserts that
      the PFPA is not charged with enforcing laws pertaining to impaired driving
      unless drivers are on the Pentagon Reservation or associated Federal lands. Id.
      He again takes issue with the deciding official’s reliance on provisions in General
      Order 1000.3, including those that require police officers to conduct themselves
      in a way that reflects “most favorably on the department,” serve as “an example
      to the community,” and “always [represent] the right thing.” Id. He argues that
      reliance on such provisions is “contrary to appropriate governmental interests and
      Constitutional guarantees.” Id. He contends that the deciding official failed to
      give proper weight to the prefatory questions listed on the agency’s Douglas
      factors analysis form regarding his dealings with the public and the relationship
      between the offense and his job duties. Id.; see IAF, Tab 4 at 32-33.
¶14         The nature and seriousness of the offense and its relation to the employee’s
      duties, position, and responsibilities is the most important of the Douglas factors.
      Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). Agencies
      are entitled to expect employees to conform to accepted standards of conduct.
      Roberson v. Veterans Administration, 27 M.S.P.R. 489, 494 (1985). This
      expectation is particularly relevant when the employee is charged with law
      enforcement duties, as law enforcement officials are held to a higher standard of
      conduct than other employees. Cantu, 88 M.S.P.R. 253, ¶ 8.



      3
        The appellant also raises this argument for the ninth and eleventh Douglas factors,
      arguing that his decision to drive was not a conscious one because he was inebriated.
      PFR File, Tab 1 at 20-22.
                                                                                         9

¶15        The appellant’s misconduct and his primary duties as a Police Officer were
      unmistakably interconnected.    His job was directly related to ensuring public
      safety and upholding the Federal and state laws on the Pentagon Reservation. HT
      at 70, 75-76, 80-81; IAF, Tab 4 at 77-82.       He was expected to serve as an
      example of a law-abiding citizen within the community, as well as to exercise
      good judgment and make sound decisions. HT at 67, 76, 78. The appellant’s
      apparent disregard for the gravity of the potential consequences of driving while
      intoxicated, as well as his other conduct at the scene of the accident and the jail,
      raised legitimate concerns for the agency, compelling it to conclude that it could
      not trust his ability to function as a law enforcement official. HT at 67-69, 71,
      96-97, 119, 121, 145; IAF, Tab 4 at 25-27, 32-37, 44-45.
¶16        To the extent that the appellant is challenging the validity of General
      Order 1000.3, he does so for the first time on review.        The Board will not
      consider an argument raised for the first time in a petition for review absent a
      showing that it is based on new and material evidence not previously available
      despite   the party’s   due diligence.      Banks   v.   Department    of   the   Air
      Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made such a showing.
      In any event, he stipulated that General Order 1000.3 applies to all PFPA police
      officers, and he acknowledged that his behavior violated the agency’s code of
      conduct. IAF, Tab 22 at 4; HT at 276. Finally, the appellant’s assertion that he
      cannot be held responsible for “unintentional” actions he took while inebriated is
      wholly without merit.     He has not shown that his ingestion of alcohol was
      unintentional, and the effects of alcohol ingestion on reasoning and judgment are
      widely understood.
¶17        The appellant argues that the deciding official should have treated the
      fourth Douglas factor, his past work record, as mitigating rather than neutral
      because his performance evaluations showed that he was a reliable employee who
      got along well with his colleagues. PFR File, Tab 1 at 18; see IAF, Tab 4 at
      33-34. His evaluations, however, were not part of the materials that the deciding
                                                                                       10

      official relied upon in making his decision. IAF, Tab 4 at 29-42, 47-82, 84-86;
      HT at 134, 138. In any event, even if we were to reconsider this factor as a
      mitigating one, the aggravating factors in this case have far greater weight.
¶18        The appellant argues that the deciding official should not have found the
      fifth Douglas factor, the effect of the offense upon the employee’s ability to
      perform at a satisfactory level and upon his supervisor’s confidence in his ability
      to perform, to be an aggravating factor. PFR File, Tab 1 at 18. He takes issue
      with the deciding official’s finding that he had “the capacity to execute the
      mechanics of his position,” but not the “moral character” to be a police
      officer. Id. He argues that the offense “was not one of moral turpitude,” and in
      any event, “police officers should never utilize their own moral code in enforcing
      the law.” Id. He argues that he committed a “single misdemeanor offense with
      no indication it would be repeated” and that the offense bore neither on his ability
      to do his job nor on public opinion. Id. He further argues that the deciding
      official, in any event, was not his immediate supervisor and retired from service
      soon after deciding to remove him. Id. at 19.
¶19        Here, the appellant distorts the deciding official’s reasoning.      While the
      deciding official acknowledged that the appellant was capable of performing “the
      mechanics of his position,” he also found the appellant’s actions to be “in conflict
      with the values of law enforcement and the mission of th[e] organization.” IAF,
      Tab 4 at 34.    He cited that the appellant’s “disregard for the safety of the
      community and the public,” violation of his sworn oath to uphold the law, and
      poor judgment, as illustrated by his “atrocious decision . . . to get behind the
      steering wheel of a motor vehicle in an attempt to drive home while intoxicated.”
      HT at 70, 73, 145. Where an employee’s misconduct raises concerns about his
      judgment, an agency may reasonably conclude that he cannot be trusted with law
      enforcement    duties.       See,   e.g.,   Fischer    v.   Department      of   the
      Treasury, 69 M.S.P.R. 614, 619 (1996). That the deciding official was not the
                                                                                       11

      appellant’s immediate supervisor and that he retired soon after making the
      removal decision are of no consequence.
¶20        Regarding the sixth Douglas factor, the consistency of the penalty with
      those penalties imposed upon other employees for the same or similar offenses,
      the appellant argues that he knew of other employees who had committed similar
      offenses but that the administrative judge would not let him conduct discovery or
      call these witnesses. PFR File, Tab 1 at 19. Issues related to discovery and the
      admissibility of evidence are addressed below; however, we note that the deciding
      official asked the agency’s human resources department for information regarding
      “all similar cases involving this type of infraction.” HT at 150-51. He received
      information about a single similar case, which involved speeding on a motorcycle
      (though no DUI offense), for which the employee was removed. IAF, Tab 4 at
      34-35; HT at 151-52.
¶21        As for the consistency of the penalty with the agency’s table of penalties,
      the seventh Douglas factor, the appellant asserts that the deciding official ignored
      general guidance in the table, which states that “[a] first offense normally does
      not warrant the removal of an employee,” and that a lesser penalty is proper
      “[w]hen appropriate and action other than removal will correct an employee’s
      conduct.” PFR File, Tab 1 at 20; see IAF, Tab 18 at 29. As the administrative
      judge correctly noted, however, the guidance “does not prohibit an agency from
      imposing removal for a first offense of misconduct,” and “there are certain acts of
      misconduct which are so egregious that removal is warranted for the first
      offense.” ID at 13.    In any event, for the charge of Conduct Unbecoming a
      Federal Employee (Immoral, indecent, illegal, or disgraceful conduct), the
      penalties listed in the table range from a 5-day suspension to removal for a first
      offense. IAF, Tab 17 at 85.
¶22        Regarding the ninth Douglas factor, the clarity with which he was on notice
      of any rules he violated in committing the offense or had been warned about the
      conduct in question, the appellant argues that “nothing in the record or in
                                                                                     12

      common knowledge” would have alerted him that he would have been removed
      for driving under the influence of alcohol. PFR File, Tab 1 at 20. This argument
      is unavailing. The appellant stipulated that he “has known since before he was
      issued his Virginia Driver’s License that driving a vehicle while under the
      influence of alcohol is prohibited by law.” IAF, Tab 22 at 5. He also stipulated
      that the agency’s code of conduct applies to all PFPA Police Officers. Id. at 4.
      He additionally stipulated that he was required to establish and maintain a
      working knowledge of all laws, regulations, administrative instructions, general
      orders and standard operating procedures of the agency.        Id.   The appellant
      likewise would have had access to the agency’s table of penalties, which states
      that removal may be appropriate for a first offense of Conduct Unbecoming a
      Federal Employee.
¶23        The appellant argues that the deciding official misunderstood the tenth
      Douglas factor, the potential for rehabilitation. PFR File, Tab 1 at 21-22. He
      argues that the deciding official presupposed without any evidence that he would
      commit the same offense in the future. Id. at 21. Instead, the appellant argues,
      he would be unlikely to do so because he committed the offense during a time of
      unusual personal stress, his work record was good, and he completed the VASAP
      program.   Id. at 21-22.   The deciding official, however, considered these and
      other mitigating factors in making his decision.   IAF, Tab 4 at 26, 33-34, 36-37;
      HT at 62, 65, 126, 156-57.       He also acknowledged that the appellant was
      apologetic and brought his arrest to the attention of management officials. IAF,
      Tab 4 at 36; HT at 63.      Having weighed these factors, the deciding official
      nevertheless concluded that the appellant did not have a strong potential for
      rehabilitation. IAF, Tab 4 at 36; HT at 83-87, 161-62. The deciding official
      concluded that the appellant’s record of poor decision-making and demonstrated
      disregard for the law and public safety, as well as his criminal conviction for
      DUI, detracted from his potential for rehabilitation, especially given his job
                                                                                         13

      duties and the requirement that he maintain a security clearance for continued
      employment. IAF, Tab 4 at 36; HT at 83-87, 161-62.
¶24         The administrative judge upheld the deciding official’s conclusions.         ID
      at 19-20.    The administrative judge additionally noted that the appellant
      completed substance abuse counseling, but she acknowledged that it was unclear
      whether the treatment program addressed the misconduct at issue.           ID at 20.
      However, even if it did, a good prognosis or a favorable “forward-looking
      analysis” for an appellant’s future behavior does not outweigh the agency’s
      legitimate apprehension as to his ability to perform his duties, and the effect of
      his proven misconduct on the efficiency of the service. See, e.g., Quander v.
      Department of Justice, 22 M.S.P.R. 419, 422 (1984), aff’d, 770 F.2d 180 (Fed.
      Cir. 1985) (Table).     With particular regard to the appellant’s rehabilitation
      potential, we find troubling his insistence that his overall misconduct was less
      egregious because alcohol clouded his judgment, as this indicates that he appears
      to be avoiding responsibility for his actions.     The appellant’s reliance on this
      argument only reinforces our view that the deciding official properly weighed the
      factors for and against rehabilitation.
¶25         As for the twelfth Douglas factor, the adequacy and effectiveness of
      alternative sanctions, the appellant argues that the deciding official could not
      show that he would hesitate to arrest others for similar misconduct. PFR File,
      Tab 1 at 23. He argues further that the deciding official misapplied Giglio v.
      United States, 405 U.S. 150 (1972), 4 asserting that the rule therein applies only to
      convictions for impeachable offenses as defined by Rule 609 of the Federal Rules

      4
        Under Giglio, investigative agencies must turn over to prosecutors, as early as
      possible in a case, any potential impeachment evidence concerning the agents involved
      in the case. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 4 n.1 (2012). The
      prosecutor then will exercise his discretion regarding whether the impeachment
      evidence must be turned over to the defense. Id. A “Giglio-impaired” agent is one
      against whom there is potential impeachment evidence that would render the agent’s
      testimony of marginal value in a case. Id. Thus, a conviction is less likely in a case
      that depends primarily on the testimony of a Giglio-impaired witness. Id.
                                                                                       14

      of Evidence. A DUI conviction would not meet the definition of an impeachable
      offense under Rule 609. 5 Id. at 23-24; see IAF, Tab 4 at 37.        The appellant
      further asserts that nothing in his removal would deter other employees from
      driving while intoxicated, but a lesser penalty nevertheless would deter him from
      engaging in the same behavior, given the high personal costs imposed by this
      incident. PFR File, Tab 1 at 24.
¶26        Setting aside the deciding official’s reliance on Giglio, we are satisfied that
      he considered lesser sanctions.       However, given his conclusion that the
      appellant’s behavior was incompatible with a career in law enforcement, the
      deciding official properly found that no alternative sanction would be appropriate.
      HT at 154-55.        Because the agency no longer trusted the appellant to
      satisfactorily perform his law enforcement duties, imposing a lesser sanction
      would not have promoted the efficiency of the service. Id.

      The appellant’s removal promotes the efficiency of the service.
¶27        The appellant asserts that, because the deciding official misconstrued the
      Douglas factors, his removal did not promote the efficiency of the service. PFR
      File, Tab 1 at 25.     The deciding official, however, did not misconstrue the
      Douglas factors. In any event, an adverse action promotes the efficiency of the
      service when the grounds for the action relate to an employee’s ability to
      satisfactorily perform his job, or to some other legitimate government interest.
      Fontes v. Department of Transportation, 51 M.S.P.R. 655, 665 (1991). Here, the
      agency established a sufficient nexus between the charged conduct and the
      appellant’s duties as a Police Officer. Even if it is unlikely that the appellant
      would have ever been required to make a DUI arrest while on duty, the agency


      5
        Under Rule 609, an impeachable offense is “for a crime that, in the convicting
      jurisdiction, was punishable by death or by imprisonment for more than one year” or
      “any crime regardless of the punishment” where “the court can readily determine that
      establishing the elements of the crime required proving—or the witness’s admitting—a
      dishonest act or false statement.” Fed. R. Evid. 609(a).
                                                                                        15

      has a legitimate interest to ensure that its law enforcement officers reliably
      exercise sound judgment, obey all applicable laws, and refrain from conduct that
      reflects unfavorably on the agency.

      The administrative judge’s discovery and evidentiary rulings are entitled to
      deference.
¶28        The appellant challenges various evidentiary and discovery rulings that the
      administrative judge made below. 6     An administrative judge has considerable
      authority in conducting Board appeals. 5 C.F.R. § 1201.41(b). The Board will
      not reverse her rulings on discovery matters absent an abuse of discretion.
      Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d,
      996 F.2d 1236 (Fed. Cir. 1993) (Table). She also has wide discretion
      under 5 C.F.R. § 1201.41(b)(8), (10) to exclude witnesses where it has not been
      shown that their testimony would be relevant, material, and nonrepetitious.
      Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985).
¶29        The appellant argues that the administrative judge abused her discretion by
      declining to extend discovery deadlines.       PFR File, Tab 1 at 25-27.         The
      administrative judge did so after the appellant failed to timely explain why such
      an extension would be necessary.         The administrative judge set forth in
      considerable detail the reasons for her denial.     IAF, Tab 15.     The Board has
      upheld the denial of extensions of discovery deadlines in similar circumstances.
      See, e.g., Fisher v. Department of Defense, 59 M.S.P.R. 165, 170-71 (1993).
¶30        The appellant argues that the administrative judge barred the appearance or
      limited the testimony of witnesses who could have testified regarding the
      penalties they had received for misconduct and witnesses who could have
      addressed his potential for rehabilitation. PFR File, Tab 1 at 19, 27-28. The
      agency showed, however, that none of these proffered witnesses that the

      6
        The appellant labels these discovery and evidentiary rulings as harmful errors. The
      appellant’s arguments are more properly considered as allegations of abuses of
      discretion. See 5 C.F.R. § 1201.41(b).
                                                                                      16

      administrative judge denied could have provided relevant testimony as to
      disparate penalties.   IAF, Tab 22 at 8 & n.2.     As for those witnesses whose
      testimony was limited, PFR File, Tab 1 at 27, the administrative judge found the
      proffered testimony for one witness to be outside the scope of testimony
      delineated during the prehearing conference, HT at 181-84, and the appellant
      himself withdrew his request for the other witness, IAF, Tab 32. The appellant
      additionally asserts, without further elaboration, that the administrative judge
      “refused to allow [his] attorney to elicit testimony at the hearing in a number of
      relevant areas particularly during the cross-examination of the deciding official.”
      PFR File, Tab 1 at 28.      Without additional information, however, we cannot
      address that issue. See, e.g., Tines v. Department of the Air Force, 56 M.S.P.R.
      90, 92 (1992) (explaining that a petition for review must contain sufficient
      specificity to enable the Board to ascertain whether there is a serious evidentiary
      challenge justifying a complete review of the record). In summary, we find no
      abuse of discretion in the administrative judge’s evidentiary and discovery
      rulings.

      The appellant has not shown that the administrative judge committed harmful
      procedural error.
¶31         Next, the appellant argues that the administrative judge erroneously limited
      his reliance on the Administrative Procedures Act. PFR File, Tab 1 at 27-28.
      The administrative judge asked him, however, to set forth during the prehearing
      conference the specific provisions of the Act upon which he intended to rely.
      IAF, Tab 22 at 7.      He could not do so, id., nor was he able to provide such
      information during the hearing, ID at 12-13. In any event, his petition for review
      fails to explain how this alleged error affected his substantive rights.       See
      Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (holding that an
      administrative judge’s procedural error is of no legal consequence unless it is
      shown to have adversely affected a party’s substantive rights).
                                                                                        17

      The appellant has not shown he was harmed by the alleged inaction of the
      Board’s Washington Regional Office.
¶32         Finally, the appellant alleges that the Washington Regional Office failed to
      provide him a copy of the hearing compact disc in a timely manner, and he thus
      was unable to provide record citations in the petition for review. PFR File, Tab 1
      at 28-29. Under the Board’s regulations, a court reporter prepares the official
      recording of the hearing, which becomes part of the record.                 5 C.F.R.
      § 1201.53(a).   A compact disc made from the recording, however, does not
      contain record citations and alone would not have enabled the appellant to add
      record citations to his petition for review. The appellant might have asked the
      court reporter to prepare a full or partial transcript, 5 C.F.R. § 1201.53(b), from
      which he could have obtained citations. Nevertheless, the agency avers that no
      one ever requested a transcript before the petition for review was due. PFR File,
      Tab 4 at 29 & n.5. Any harm suffered by the appellant thus was self-inflicted.
      For all of the reasons stated above, we thus affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                    U.S. 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).
                                                                                 18

      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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.         Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
