                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BRADFERD C. BIDNICK,                            DOCKET NUMBER
                   Appellant,                        AT-0752-14-0060-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: April 15, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Joseph E. Benitez, Coral Gables, Florida, for the appellant.

           Aditi Sehgal and Katherine Meng, 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
     sustained his removal for misconduct. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         On September 18, 2013, the agency appointed the appellant to the position
     of GL-09 Criminal Investigator. 2 Initial Appeal File (IAF), Tab 6, Subtab 4c at
     56. Upon his appointment, the appellant was enrolled in special agent training.
     Id. at 58. As an enrollee, he was subject to the agency’s Special Agent Trainee
     Honor Code (Honor Code). IAF, Tab 5 at 62, 66-67.
¶3         While the appellant was still in the training program, the agency proposed
     his removal based on one charge of violating the Honor Code by cheating on a
     written examination. 3    Id. at 56-59.    Specifically, the agency alleged that on
     March 26, 2013, the appellant          was observed      viewing another      trainee’s
     examination materials and marking his own answer sheet after viewing those

     2
       The appellant was previously a GS-13 Physical Security Specialist with the same
     agency and transferred to the Criminal Investigator position without a break in service.
     Initial Appeal File (IAF), Tab 6, Subtab 4c at 56. It is undisputed that he was an
     “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) with Board appeal rights at the time of
     his removal. IAF, Tab 5 at 5.
     3
       The Honor Code states that “special agent trainees, in performance of their official
     duties, will not lie, cheat, steal or tolerate those who do. Any violation of the Honor
     Code may result in termination from training.” IAF, Tab 5 at 66 (emphasis in the
     original). The Honor Code provides a defin ition of “cheating,” and the appellant does
     not dispute that his alleged actions, if proven, wou ld constitute cheating under that
     defin ition. Id.
                                                                                             3

     materials. Id. at 56. After receiving the appellant’s response to the proposal,
     IAF, Tab 6, Subtab 4c at 4-55, the agency removed him effective September 4,
     2013, IAF, Tab 5 at 22-28.
¶4         The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at
     22-23. He disputed the charge and the penalty, and he raised affirmative defenses
     of harmful procedural error, violation of due process, and whistleblower reprisal. 4
     IAF, Tab 20 at 1-6. After a hearing, the administrative judge issued an initial
     decision affirming the removal and finding that the appellant failed to prove his
     affirmative defenses. IAF, Tab 33, Initial Decision (ID).
¶5         The appellant has filed a petition for review, contesting the administrative
     judge’s findings on the charge, the penalty, and his harmful error and due process
     affirmative defenses. Petition for Review (PFR) File, Tab 4. The agency has
     filed a response. PFR File, Tab 6.

     The agency proved its charge by preponderant evidence.
¶6         Regarding the charge itself, the appellant argues that the agency’s evidence
     was insufficient to prove that he copied the other trainee’s work as alleged. PFR
     File, Tab 4 at 16-20, 28. Briefly, the agency’s evidence in support of its charge
     was from three sources: (1) the observations of the Basic Training Programs
     Branch Chief, who sat in the front of the classroom during the examination,
     (2) the observations of the Staff Administrator, who sat in the back of the
     classroom during the examination, and (3) the appellant’s and the other trainee’s

     4
        At the prehearing conference, the administrative judge declined to accept the
     appellant’s whistleblower defense for adjudication because he failed to describe the
     nature of his two disclosures, and the timing of one disclosure was such that it could not
     have been a contributing factor in the removal. IAF, Tab 20 at 6-7. The appellant
     objected to the administrative judge’s ruling and belated ly filed further evidence and
     argument on the issue. IAF, Tab 27 at 5-7, Tab 29 at 11-13. The administrative judge
     noted that the appellant’s submission was untimely, but she nevertheless adjudicated the
     whistleblower defense and found that, assuming the appellant made a protected
     disclosure, it was not a contributing factor in his removal. IAF, Tab 33, Initial Decision
     at 16. The appellant does not challenge the administrative judge’s finding regarding
     this claim, and we discern no reason to disturb it.
                                                                                        4

     multiple choice answer sheets, which showed some similarities to one another.
     IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g; Hearing Transcript, Volume I (HT I) at
     77 (testimony of the Staff Administrator), 129 (testimony of the Branch Chief).
     Specifically, the Branch Chief testified that, during the course of the 20- to
     25-minute examination, he observed the appellant put his right elbow on his desk,
     lean his head into his hand, and glance to the left at another trainee’s test
     materials approximately twenty times. HT I at 138-41. He further testified that,
     on two occasions, he saw the appellant look at the other trainee’s materials and
     immediately mark his own answer sheet. Id. at 141-42. The Staff Administrator
     testified that she observed the appellant rest his elbow on his desk, his head in his
     hand, and glance three or four times to his left at the other trainee’s examination
     materials.   Id. at 83-89.   As for the answer sheets, out of fifty questions, the
     appellant and the other trainee answered the same three incorrectly. IAF, Tab 5
     at 75; HT I at 90 (testimony of the Staff Administrator).       Of those three, the
     appellant and the other trainee supplied the same incorrect answer for two of
     them. IAF, Tab 5 at 75, Tab 6, Subtabs 4f-4g. There were fifteen trainees taking
     the examination that day, IAF, Tab 1 at 75; HT I at 114 (testimony of the Staff
     Administrator), and the examination took place in what could be fairly
     characterized as a typical classroom setting, with three rows of eight desks and
     chairs, IAF, Tab 6, Subtab 4c at 134, 136, Tab 14 at 94-100. The appellant sat in
     the front row.    IAF, Tab 6, Subtab 4c at 134; HT I at 22 (testimony of the
     appellant), 135 (testimony of the Branch Chief).
¶7        The appellant testified that he took an unusual posture during the
     examination in order to relieve pain from a leg injury—not to look at the other
     trainee’s answer sheet. PFR File, Tab 4 at 28; HT I at 29-32, 42-43 (testimony of
     the appellant). The administrative judge did not find the appellant’s testimony
     persuasive for two reasons. First, she found that the appellant’s injury was not
     severe enough to cause him to be unable to sit still during a 20-minute
                                                                                        5

     examination. ID at 7. Second, she found that the appellant failed to raise this
     issue in response to the notice of proposed removal. ID at 7-8.
¶8        On review, the appellant argues that the administrative judge’s opinion of
     the severity of his injury was not grounded in reliable, objective medical
     evidence. PFR File, Tab 4 at 28. He argues that the administrative judge denied
     his request to call his doctor as a witness and that he did not object because the
     administrative judge advised him that she would allow him to submit a letter from
     his doctor in lieu of testimony. Id.; IAF, Tab 19, Witness List at 2, Tab 20 at 8,
     Tab 29 at 16; HT I at 4-5 (statement of the administrative judge). He further
     argues that he would have objected to this witness ruling had he known that the
     administrative judge would be so dismissive of the evidence proffered in lieu of
     the doctor’s testimony. PFR File, Tab 4 at 28.
¶9        As an initial matter, we find that the appellant did not avail himself of the
     administrative judge’s invitation to submit a note from his doctor reflecting what
     the doctor’s testimony would have been. Rather, he relied on medical evidence
     that was already in the record and showed generally that the appellant was
     experiencing discomfort from his injury, but did not specifically address the
     appellant’s ability to sit still during the examination at issue.     IAF, Tab 17,
     Subtabs F, R, S, Tab 29 at 16-17, 20. In fact, the only medical evidence about the
     injury’s effect on the appellant’s ability to sit is a December 2, 2013 doctor’s note
     stating that “[t]he patient is sitting comfortably in the examination room . . . .”
     IAF, Tab 17, Subtab S at 4. Furthermore, we agree with the administrative judge
     that the appellant’s failure to raise this important issue with the deciding official
     casts doubt on the veracity of his claim. ID at 7-8. While the Board will consider
     an appellant’s evidence and arguments regardless of whether he raised them
     before the agency, see Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 610-11
     (1991) (rejecting the notion that the Board’s scope of review is limited to
     consideration of the administrative record established before the agency); Stewart
     v. Office of Personnel Management, 8 M.S.P.R. 289, 293 (1981) (concluding that
                                                                                       6

      the Board is both authorized and mandated to consider de novo all available
      relevant evidence), the Board may find them less credible when he raises them for
      the first time before the Board, see, e.g., Reynolds v. Department of Justice,
      63 M.S.P.R. 189, 195 (1994). For these reasons, we find no basis to disturb the
      administrative judge’s denial of the appellant’s doctor as a witness or her finding
      that the appellant’s injury did not cause him to have to turn during the
      examination.
¶10        The appellant also argues that the Branch Chief and the Staff Administrator
      did not give credible testimony of what they observed during the examination.
      Regarding the Branch Chief, the appellant argues that he has “credibility and
      integrity issues,” as evidenced by his past disciplinary record, including
      discipline for failure to report an “incident” to his supervisor in 1998 and for
      misuse of a government computer in 2002 or 2003. PFR File, Tab 4 at 18, 29.
      The appellant’s attorney attempted to question the Branch Chief about these
      matters at the hearing, but the administrative judge sustained the agency’s
      objection to that line of questioning. Id. at 29; HT I at 165-66. The appellant
      argues that the administrative judge should have allowed testimony on these
      issues. PFR File, Tab 4 at 29.
¶11        However, not all misconduct that an individual might commit has a bearing
      on his propensity for telling the truth.    Cf. Eichner v. U.S. Postal Service,
      83 M.S.P.R. 202, ¶ 10 (1999) (because the appellant’s prior misconduct of
      disrupting operations, distracting employees, and disobeying orders did not
      involve his propensity for telling the truth, the administrative judge should not
      have considered it in determining the credibility of the appellant’s testimony). It
      is not apparent to us, and the appellant has not alleged, that the Branch Chief’s
      prior misconduct, which occurred approximately 10 to 15 years before the
      hearing, involved any sort of falsification or element of deception. Under these
      circumstances, we find that the administrative judge did not abuse her discretion
      in sustaining the agency’s objection to this line of questioning. See Sanders v.
                                                                                        7

      Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (an administrative
      judge has wide discretion to control the proceedings, including the authority to
      exclude testimony that she believes would be irrelevant, immaterial, or unduly
      repetitious); 5 C.F.R. § 1201.41(b)(3). Moreover, the appellant has not explained
      on petition for review what testimony he expected to elicit from the Branch Chief
      concerning that prior misconduct.         Therefore, he has not shown that the
      administrative judge’s ruling prejudiced his substantive rights.     See Walton v.
      Tennessee Valley Authority, 48 M.S.P.R. 462, 467 (1991); Karapinka v.
      Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s
      procedural error is of no legal consequence unless it is shown to have adversely
      affected a party’s substantive rights).
¶12         The appellant further argues that the Branch Chief’s testimony was not
      persuasive because he could not recall where the appellant’s and the other
      trainee’s test booklets were positioned on the desk or in which hand they held
      their pencils. PFR File, Tab 4 at 19; HT I at 190, 195 (testimony of the Branch
      Chief).   In addition, the Branch Chief did not observe what the appellant was
      marking on his answer sheet. PFR File, Tab 4 at 19; HT I at 141 (testimony of
      the Branch Chief). We have considered these matters in evaluating the overall
      evidence regarding the charge, but we do not find it surprising that the Branch
      Chief was either unable to observe or unable to remember these details. We find
      that his failure to do so does not detract significantly from the persuasiveness o f
      his testimony.
¶13         Regarding the Staff Administrator, the appellant argues that her own
      testimony shows that she did not see him cheat. PFR File, Tab 4 at 16, 29. In
      support of his argument, he cites the Staff Administrator’s hearing testimony as
      well as her contemporaneous written account of her observations. Id. at 16-17;
      IAF, Tab 5 at 73; HT I at 72-99. It appears that the appellant’s point is that the
      Staff Administrator did not see him mark his answer sheet after looking at the
      other trainee’s papers. PFR File, Tab 4 at 16-17. We agree with this assessment
                                                                                        8

      and we have considered it as part of our overall evaluation of the evidence.
      However, we think that it is an overstatement to say that the Staff Administrator
      testified that she did not see the appellant cheat.           Although the Staff
      Administrator may not have observed the appellant mark his answer sheet after
      looking at the other trainee’s papers, she did observe the appellant looking at the
      other trainee’s papers, and this led her to believe that the appellant was cheating.
      HT I at 86-89 (testimony of the Staff Administrator); IAF, Tab 5 at 73.
¶14        The appellant further argues that the Branch Chief’s testimony and
      contemporaneous written statement contradict those of the Staff Administrator.
      PFR File, Tab 4 at 8, 19. Specifically, the Branch Chief stated that he saw the
      appellant cheat by looking at the other trainee’s answer sheet and marking his
      own, whereas the Staff Administrator stated that she did not see the appellant
      mark his answer sheet and did not see him cheat. Id.; IAF, Tab 5 at 71, 73; HT I
      at 99 (testimony of the Staff Administrator), 153-54 (testimony of the Branch
      Chief).    Again, the appellant mischaracterizes the Staff Administrator’s
      testimony. The Staff Administrator stated that she believed that she observed the
      appellant cheating, HT I at 86-89 (testimony of the Staff Administrator); IAF,
      Tab 5 at 73, and we do not think that her failure to observe him marking his
      answer sheet equates to a nonobservance of cheating. In any event, we find that
      the statements of these two witnesses are not contradictory.      Rather, they are
      consistent with one another. The Branch Chief merely observed details that the
      Staff Administrator did not, which is understandable, considering that he had a
      better vantage point to observe the appellant’s behavior during the examination,
      being seated closer to and facing him.
¶15        The appellant also argues that some of the language that the Branch Chief
      and Staff Administrator used in their testimony and written statements undercuts
      the conclusion that the appellant cheated on the examination. Specifically, he
      argues that the Branch Chief and the Staff Administrator stated that they observed
      the appellant “glance” at the other trainee’s paper and that a mere glance is not a
                                                                                       9

      violation of the agency’s cheating policy. PFR File, Tab 4 at 15, 18; IAF, Tab 5
      at 73; HT I at 84, 86 (testimony of the Staff Administrator), 138-41, 154, 157
      (testimony of the Branch Chief). He further argues that the Branch Chief and the
      Staff Administrator stated that the appellant “appeared” to be cheating, which is
      not the language that someone would use if he were convinced of what he saw.
      PFR File, Tab 4 at 19-20; IAF, Tab 5 at 73; HT I at 88 (testimony of the Staff
      Administrator). We are not persuaded by the appellant’s argument. Although a
      “glance” at another trainee’s materials may not be the same thing as cheating,
      twenty such “glances” during the course of a 20- or 25-minute examination is
      strongly indicative of cheating. As for the use of the word “appears,” we do not
      find this to be particularly significant.
¶16          Finally, the appellant notes that, for one of the questions that he and the
      other trainee missed, they supplied different answers. PFR File, Tab 4 at 19; IAF,
      Tab 5 at 75, Tab 6, Subtabs 4f-4g. We acknowledge that the appellant and the
      other trainee did not answer every question identically, and we have considered
      this fact in evaluating the evidence overall. They did, however, answer 49 of the
      50 questions identically, and the one that they did not answer identically, they
      both got wrong. Although the similarities between the answer sheets alone might
      not have been enough to prove that the appellant cheated, for the reasons
      explained in the initial decision, we agree with the administrative judge that the
      totality of the evidence, including the answer sheets and the testimony and
      contemporaneous written        accounts of the   Branch   Chief and     the   Staff
      Administrator, were sufficient to show by preponderant evidence that the
      appellant cheated on the examination, thereby violating the Honor Code. ID at
      5-8.

      The removal penalty promotes the efficiency of the service.
¶17          Where, as here, the agency’s charge is sustained, the Board will modify an
      agency-imposed penalty only when it finds that the deciding official failed to
      weigh the relevant penalty factors, or the penalty imposed exceeds the tolerable
                                                                                             10

      limits of reasonableness. Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15
      (2000); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Among
      the factors that the Board will consider are the nature and seriousness of the
      offense, and its relation to the employee’s duties, position, and responsibilities,
      the clarity with which the employee was on notice of any rules that were violated
      in committing the offense, or had been warned about the conduct in question, the
      employee’s potential for rehabilitation, and other mitigating circumstances that
      may have been present and contributed to the misconduct. Douglas, 5 M.S.P.R.
      at 305-06. The appellant challenges the penalty determination as follows.
¶18         First, he argues that he was not on sufficient notice of what the agency’s
      Honor Code requires because the agency “compelled [his] signature through
      direct orders.” PFR File, Tab 4 at 8, 26. He argues that the manner in which the
      agency secured his signature to the Honor Code was improper, he was never
      asked whether he had any questions about it, and he “should have been properly
      informed with sufficient opportunity . . . to have read understood and exercised
      [his] freedom of choice to be bound by such regulation.” 5                  Id. at 9-13
      (punctuation as in the original). We find, however, that the appellant was put on
      fair notice of the Honor Code and its requirements. On his first day of training,
      the appellant received a copy of the Honor Code, was told to read it, and had it
      explained to him. HT I at 17-18 (testimony of the appellant), 55 (testimony of the
      Program Manager). The agency also includes, as the first page of every written
      examination, a statement reminding special agent trainees of the Honor Code and
      its prohibition on cheating.          Id. at 56-57 (testimony of the Program

      5
        The appellant contends that if the Board were to uphold the agency’s use of its Honor
      Code, this would have far reaching implications across the civil service. PFR File, Tab
      1 at 14. He urges the Board to issue a Federal Register notice afford ing the Office of
      Personnel Management (OPM) and any interested persons an opportunity to brief the
      issue before the Board renders a decision. Id. at 13-14. We disagree that our findings
      on this issue represent a shift in the law or otherwise have the potential for broad
      impact on the civil service, and we decline the appellant’s suggestion to call for am icus
      briefs or to seek an advisory opinion from OPM.
                                                                                         11

      Administrator); IAF, Tab 5 at 69, 94-99. The appellant received and signed this
      statement on each of the seven examinations that he took, including the
      examination in question. IAF, Tab 5 at 69, 95-99; HT I at 55-56 (testimony of
      the Program Manager). Furthermore, we have reviewed the Honor Code, and we
      find nothing confusing about it.     IAF, Tab 5 at 66-67. Nor has the appellant
      explained what exactly about the Honor Code he finds unclear. In an y event,
      even in the absence of a cheating prohibition spelled out in the Honor Code, the
      appellant has a graduate level education and we do not believe that he fails to
      understand the gravity of cheating on an examination. IAF, Tab 17, Subtab D.
      Moreover, cheating on an examination is contrary to 5 C.F.R. § 735.203, which
      applies to the civil service generally, and provides that an employee shall not
      engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful
      conduct, or other conduct prejudicial to the Government. Lawley v. Department
      of the Treasury, 84 M.S.P.R. 253, ¶ 18 (1999).
¶19        Second, the appellant argues that the deciding official failed to consider his
      injury as a mitigating factor. PFR File, Tab 4 at 27. However, the appellant has
      not established a causal connection between his injury and the misconduct that
      would give us a basis to consider this as a mitigating factor. See Brown v. U.S.
      Postal Service, 64 M.S.P.R. 425, 434 (1994).
¶20        Third, the appellant argues that the deciding official failed to consider his
      potential for rehabilitation. PFR File, Tab 4 at 27. We agree with the appellant
      that the deciding official testified that he did not consider the appellant’s
      potential for rehabilitation. HT I at 296-97. It appears that the deciding official
      found that the appellant’s potential for rehabilitation was not especially relevant
      because, throughout his entire career, the offense would be subject to disclosure
      under Giglio v. United States, 405 U.S. 150 (1972).               HT I at 296-97.
      Nevertheless, the deciding official also testified that he considered the evidence
      that the appellant identified as indicative of his rehabilitative potential, including
      his work history and letters of reference. Hearing Transcript, Volume II (HT II)
                                                                                        12

      at 26-27. The overall tenor of the deciding official’s testimony is that he found
      the appellant’s rehabilitative potential to be immaterial in light of the seriousness
      of the charge and the appellant’s compromised utility as a law enforcement
      officer. HT I at 296-97; HT II at 26-27. Therefore, notwithstanding the portions
      of the deciding official’s testimony that the appellant identifies on petition for
      review, our review of the deciding official’s testimony as a whole leads us to
      agree with the administrative judge that the deciding official considered and
      responsibly weighed the pertinent penalty factors. ID at 9-10.
¶21        Regarding the nature and seriousness of the offense and its relation to the
      appellant’s duties, position, and responsibilities, the Board has long held that
      offenses touching on honesty and integrity are especially serious when it comes to
      law enforcement officers, who are held to a higher standard of conduct to begin
      with. E.g., Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 16 (2003),
      aff’d, 131 F. App’x 709 (Fed. Cir. 2005); Childs v. U.S. Postal Service,
      67 M.S.P.R. 348, 356 (1995); Austin v. Department of Justice, 11 M.S.P.R. 255,
      259 (1982). The Board places primary importance on this penalty factor. Jones
      v. Department of the Interior, 97 M.S.P.R. 282, ¶ 13 (2004). For the reasons
      explained in the initial decision, we agree with the administrative judge that the
      removal penalty does not exceed the tolerable limits of reasonableness, and that it
      promotes the efficiency of the service. ID at 10.

      The appellant has not shown that the agency committed harmful procedural error.
¶22        To prove that the agency committed harmful procedural error under
      5 U.S.C. § 7701(c)(2)(A), the appellant must show both that the agency
      committed procedural error and that the error was harmful. Parker v. Defense
      Logistics Agency, 1 M.S.P.R. 505, 513 (1980).            He must prove that any
      procedural errors by the agency prejudiced his substantive rights by possibly
      affecting the agency’s decision; harmful error cannot be presumed. Stephen v.
      Department of the Air Force, 47 M.S.P.R. 672, 681 (1991).
                                                                                      13

¶23        The appellant argues that the agency failed to launch an adequate and
      competent investigation by the Office of Internal Affairs “pursuant to standing
      Agency policy, directives and manual orders” and that this resulted in the
      removal decision being based on “speculation and conjecture.” PFR File, Tab 4
      at 1. The administrative judge addressed this argument at length below, and he
      found that the agency committed no procedural error and that the appellant failed
      to show that the investigation that he desired might have changed the outcome of
      the case. ID at 12-14. There is no apparent error in the administrative judge’s
      analysis and we find that the appellant’s argument constitutes mere disagreement
      with it. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)
      (mere disagreement with the administrative judge’s findings and credibility
      determinations does not warrant full review of the record by the Board).
¶24        The appellant also argues that the agency had no procedures to deal with
      allegations of cheating but instead, in violation of Bureau of Alcohol, Tobacco,
      Firearms and Explosives Manual Order 2140.1, created an ad hoc procedure to
      address his particular situation. PFR File, Tab 4 at 21; IAF, Tab 17, Subtab W.
      However, we are aware of no law, rule, or regulation, requiring agencies to have a
      separate established protocol for addressing every conceivable category of
      misconduct.    Nor has the appellant explained what these alleged ad hoc
      procedures were or how they were inconsistent with the procedures in Manual
      Order 2140.1 or any other statutory or regulatory procedures generally applicable
      to addressing employee misconduct. Therefore, the appellant has not shown that
      the agency committed any procedural error in this regard or that any such
      procedural error was harmful.        See Helms v. Department of the Army,
      114 M.S.P.R. 447, ¶ 7 (2010).

      The appellant has not shown that the agency violated his due process rights.
¶25        An agency’s failure to provide a tenured public employee with an
      opportunity to present a response, either in person or in writing, to an appealable
      agency action that deprives him of his property right in his employment
                                                                                       14

      constitutes an abridgement of his constitutional right to minimum due process of
      law, i.e., prior notice and an opportunity to respond.         Cleveland Board of
      Education v. Loudermill, 470 U.S. 532, 546 (1985).
¶26         On review, the appellant argues that the deciding official was aware of the
      appellant’s case before it came to him in his capacity as deciding official and that
      he was already predisposed to decide against the appellant. PFR File, Tab 4 at
      22.   However, it is well-established that a deciding official’s awareness of
      background information concerning the appellant, his concurrence in the
      desirably to take an adverse action, or his predisposition to impose a severe
      penalty does not disqualify him from serving as a deciding official on due process
      grounds. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 7-8
      (2012). There is no general proscription of the appointment as a deciding official
      of a person who is familiar with the facts of the case and who has expressed a
      predisposition contrary to the appellant’s interests. Svejda v. Department of the
      Interior, 7 M.S.P.R. 108, 111 (1981).
¶27         The appellant also argues that the deciding official considered “facts not in
      evidence” in reaching his decision.     PFR File, Tab 4 at 23-25, 30.     We have
      reviewed the appellant’s argument and it appears that he is not alleging that the
      deciding official considered any ex parte communications or evidence to which
      the appellant was not privy.    Rather, he disagrees with the deciding official’s
      characterization of that evidence at the hearing. Id. at 23-25. We find that the
      appellant has not established a violation of his due process rights.

                      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.
            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
                                                                                       15

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 want to request review of the Board’s decision concerning your
claims     of   prohibited     personnel    practices   under 5   U.S.C.     § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.     Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
         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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective         websites,       which         can      be      accessed        through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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      If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, 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 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.
