                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MARK L. FELLOWS,                                DOCKET NUMBER
                  Appellant,                         DA-0752-13-1027-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 18, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Lisa M. Ezra, Esquire, and Jennifer Petelle, Laredo, Texas, 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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. We AFFIRM
     the initial decision, MODIFYING the due process analysis but still finding that
     the appellant failed to prove that claim.
¶2        Based on the results of a fitness-for-duty (FFD) examination, Initial Appeal
     File (IAF), Tab 7 (agency file on a compact disc) at 315-24, the agency removed
     the appellant from his position as a GS-12 Border Patrol Agent (BPA), effective
     September 18, 2012, charging that he was psychiatrically not fit for duty and
     unable to perform the essential duties of his position. 2 Id. at 357-60, 234-38.
     The appellant filed a complaint with the agency’s Office of Civil Rights and Civil
     Liberties in which he alleged that the removal action was due to discrimination
     based on race and sex and taken in retaliation for protected equal employment
     opportunity (EEO) activity. On May 7, 2013, the agency issued a final agency
     decision (FAD) finding no discrimination and no retaliation.           Because the
     appellant had not been provided the proper review rights, the agency issued an
     amended and procedurally correct FAD on July 11, 2013.           Id., Tab 3.    The




     2
       A consulting psychiatrist reviewed the results of the original FFD examination and
     concurred in them. IAF, Tab 7 at 353-54.
                                                                                               3

     appellant filed a timely appeal with the Board from the amended FAD, id., Tab 1,
     and requested a hearing, 3 id. at 2.
¶3         The administrative judge thereafter issued an initial decision based on the
     written record in which he affirmed the agency’s action.             Id., Tab 77, Initial
     Decision (ID) at 2, 17. He found that the agency ordered the appellant to submit
     to a FFD examination based on numerous documented incidents that raised the
     concern of his supervisors and coworkers as to his ability to perform his full
     duties in a safe and effective manner. ID at 3. The administrative judge noted,
     based on the appellant’s position description, IAF, Tab 7 at 676-81, that he was
     required to apply law enforcement procedures and methods in interrogating
     suspects, to make instantaneous and unsupervised custodial decisions with a
     potential for international consequences, to arrest combative suspects, and
     generally to carry out the most difficult assignments in all operational and
     specialty areas.     ID at 4.      The administrative judge sustained the charge,
     concluding that: the appellant’s BPA position has medical standards and physical
     requirements; based on the medical evidence, he was unable to perform his duties,
     including carrying a weapon; his condition was disqualifying and that its
     recurrence or his continued mental instability could not be ruled out; and, based
     on his duties, a recurrence would pose a reasonable probability of substantial
     harm. 4 ID at 6-7.
¶4         The administrative judge then considered the appellant’s claim that the
     agency violated his due process rights, a claim he had raised in connection with
     his waiver of his right to a hearing. IAF, Tab 70. Specifically, he submitted

     3
      During processing, the appellant submitted a plead ing entitled “Appellant’s Waiver of
     Hearing and Request for Reversal of Agency Action.” IAF, Tab 70. Several days later,
     when neither the appellant nor his representative appeared at the hearing, the
     administrative judge canceled it and set a date for the close of the record. I d., Tab 72.
     4
      The administrative judge found that the appellant failed to establish that his removal
     was due to discrim ination based on race or sex, or that it was in retaliation for protected
     EEO activity. ID at 7-12.
                                                                                          4

     copies of two memoranda prepared by fellow BPAs 5 that, as exhibits to the FFD
     evaluation, id. at 7-9, were relied upon by the psychiatrist who prepared the
     evaluation and were in turn relied upon by the deciding official. The appellant
     argued below that the agency failed to provide him with these memoranda and
     that such failure constituted a violation of his due process rights.              The
     administrative judge found the claim to be without merit, reasoning that the
     information contained in the memoranda was not new, but was cumulative to
     information already presented in the evaluation which the appellant received and
     to which he was offered an opportunity to respond.         The administrative judge
     further found that the information was not of a type to create pressure on the
     deciding official to rule in a particular manner. ID at 14.
¶5        Finally, the administrative judge found that the agency’s action promotes
     the efficiency of the service and that removal is a reasonable penalty for the
     sustained charge. ID at 14-17.
¶6        The appellant’s sole argument on petition for review is that the
     administrative judge erred in finding that he did not suffer a due process
     violation. Petition for Review (PFR) File, Tab 1 at 5-9. The appellant argues, as
     he did below, that the two memoranda presumably constituted aggravating factors
     supporting an enhanced penalty, but that the agency did not provide him with the
     memoranda to review and refute in his response to the notice of proposed
     removal.
¶7        It is well established that, if an employee has not been given notice of any
     aggravating factors supporting an enhanced penalty, an ex parte communication

     5
       In the first memorandum, the BPA related a conversation he had with the appellant in
     which he described booby traps he set on certain trails, alleged ly to slow down
     pedestrian traffic, but which the BPA feared could seriously harm not only anyone
     illegally entering the United States but also other agents. IAF, Tab 70 at 7-8. In the
     second memorandum, another BPA described a conversation in which he overheard the
     appellant bragging to yet another BPA that he was going to get three Supervisory BPAs
     fired, and an earlier conversation he had with the appellant in which he stated that he
     intended to kill a fellow BPA. I d. at 9.
                                                                                     5

     with the deciding official regarding such factors may constitute a due process
     violation. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).
     However, the record does not support the appellant’s claim that he was not
     provided with the memoranda prior to the time he replied to the charge. The two
     memoranda were provided to his former attorney in response to his initial data
     request, in a file marked “Materials Relied Upon,” well in advance of the
     appellant’s oral reply to the proposed removal. IAF, Tab 76 at 38-39 (declaration
     of agency the Labor and Employee Specialist who responded to the appellant’s
     then-attorney’s request for information that he provided the memoranda to the
     attorney on February 24, 2012).    On March 21, 2012, still months before the
     appellant’s oral reply, his attorney submitted a supplemental data request to the
     agency in which he specifically referenced both memoranda and requested that
     the agency provide him any additional information related to them. IAF, Tab 7 at
     261-67. As such, the record supports a finding that the appellant’s designated
     representative had these two memoranda in his possession several months prior to
     June 8, 2012, when the appellant made his oral reply. As such, the memoranda do
     not constitute ex parte communications.
¶8        On review, the appellant argues that his then-attorney was misled by
     “agency subterfuge” when he agreed that the medical reports from the agency
     would only be released to a qualified medical practitioner chosen by the appellant
     who would provide them to him in a therapeutic setting. PFR File, Tab 1 at 8.
     According to the appellant, based on that agreement, he did not personally review
     certain documents including, presumably, the two memoranda, until August 14,
     2012, 2 months after he gave his oral reply. IAF, Tab 73 at 16-18. However, the
     record reflects that the agency afforded the appellant a second opportunity to
     make an oral reply after August 14, 2012, id., Tab 10 at 5, but that his attorney
                                                                                        6

     canceled it, id., Tab 76. With an exception not here applicable, 6 the Board has
     long held that an appellant is bound by the actions or inactions of his designated
     representative. Cf. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981)
     (the appellant is responsible for the errors of his chosen representative).      The
     decision of the appellant’s then-attorney to not share certain documents with the
     appellant until he could review them in the company of a specific medical
     professional does not render those documents an ex parte communication or
     otherwise constitute a due process violation.
¶9        The appellant does not, on review, challenge the administrative judge’s
     findings regarding the charge, the claims of discrimination or retaliation, the
     efficiency of the service, or the reasonableness of the penalty, PFR File, Tab 1,
     and we discern no reason to disturb those findings, Crosby v. U.S. Postal Service,
     74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
     judge’s findings where he considered the evidence as a whole, drew appropriate
     inferences, and made reasoned conclusions).

                     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 further review of this final decision.

     Discrimination Claims: Administrative Review
           You may request review of this final decision on your discrimination
     claims by the Equal Employment Opportunity Commission (EEOC). See Title 5



     6
       When an appellant’s diligent efforts to prosecute his appeal are thwarted by his
     representative’s negligence or malfeasance, the appellant and his representative were
     not acting as one, and the representative’s negligence or malfeasance should not be
     attributed to the appellant. Edwards v. Department of Veterans Affairs, 111 M.S.P.R.
     297, ¶ 6 (2009).
                                                                                    7

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                           8

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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