     United States Court of Appeals for the Federal Circuit



                                         04-3026

                                     NEAL BROSS,

                                                               Petitioner,

                                            v.

                           DEPARTMENT OF COMMERCE,

                                                               Respondent.




      Peter B. Broida, of Arlington, Virginia, argued for petitioner.

       Michael S. Dufault, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Deborah A. Bynum, Assistant Director.

Appealed from:    United States Merits Systems Protection Board
United States Court of Appeals for the Federal Circuit



                                        04-3026

                                     NEAL BROSS,

                                                                      Petitioner,

                                            v.

                           DEPARTMENT OF COMMERCE,

                                                                     Respondent.
                           ___________________________

                           DECIDED: November 22, 2004
                           ___________________________



Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.

DYK, Circuit Judge.

      Respondent Department of Commerce (“Commerce”) removed petitioner Neal

Bross (“Bross”) from his position as a Computer Specialist for illegally downloading child

pornography from the Internet to his government computer. Bross seeks review of the

decision by the Merit Systems Protection Board (“Board”) upholding his removal. Bross

v. Dep’t of Commerce, 94 M.S.P.R. 662 (2003) (“Final Order”). We affirm.

                                    BACKGROUND

      Bross was employed by the Department of Commerce, Bureau of the Census

(“Census”) where he worked as a GS-13 Computer Specialist. On September 17, 1999,

Bross entered a Census Bureau building at approximately 1:20 a.m., accessed an illicit
internet web site from his government computer, and downloaded images of child

pornography. Based on this conduct, Bross was subsequently charged and pled guilty

in federal district court to a one count violation of 18 U.S.C. § 13, which prohibits the

possession of visual images depicting individuals less than 16 years of age engaged as

subjects of sexual conduct. He was sentenced to three years probation on conditions

that included, inter alia, regular counseling, the possibility of searches by a probation

officer of any computer (home or work) that he might use, and notification of his

employer of these conditions and restrictions on his computer use.

      Before this incident, Bross’s employment record was unblemished; he had even

been awarded the Census Bureau’s Bronze Medal for exemplary performance.             The

parties do not dispute that Bross took responsibility for his actions; was involved in

counseling; and was in compliance with the terms of his probation. Bross’s conviction

for use of his government computer to access child pornography was the first case of

this nature for Census.

      Bross was covered by a collective bargaining agreement between the agency

and his union.     The procedures for designating proposing/deciding officials for

disciplinary action were therefore governed by the Memorandum of Understanding,

dated September 4, 1985 (“the MOU”) that had been negotiated between Census and

Bross’s union. Under the MOU, “Division Chiefs or their equivalents will normally serve

as both Proposing and Deciding Official on conduct-based actions,” although a “higher

level management official may be the Proposing and Deciding Official for . . .

precedent-setting cases.” (J.A. at 78-79.)




04-3026                                 2
      The parties agree that, pursuant to the MOU, Bross’s Division Chief, Dr. Thomas

Wright (“Wright”), would “normally” serve as both the proposing and deciding official in

conduct-based actions such as Bross’s, unless he was replaced by a higher

management official in a “precedent-setting” case.

      In initial discussions of Bross’s case with the agency, it appeared that Wright and

Bross’s more immediate supervisors1 were favoring an adverse action short of removal,

while the agency’s human resources and legal officials were advocating removal. After

these initial meetings, Wright informed his supervisor, Dr. Cynthia Clark (“Clark”) of the

matter. Clark testified that she noted the “serious nature of the case” and that upon

hearing Wright’s support for an adverse action short of removal, indicated to Wright that

she would “likely be the . . . proposing and deciding official in the case.” (J.A. at 108-

09.) Clark stated that she understood her authority to displace Wright as the proposing

and deciding official in Bross’s case to be based upon the MOU. (Id. at 110).

      Ultimately, Clark acted as both the proposing and deciding official. On March 27,

2001, Clark sent Bross a letter proposing removal based on his conduct unbecoming a

government employee and misuse of government equipment. Bross and his lawyer

provided an oral response to the proposal, noting Bross’s previously unblemished

employment history and the alleged victimless nature of his offense.            They also

furnished written documents in support of Bross’s reply, including a letter from his

counselor describing treatment of Bross’s “self-diagnosed” sexual addiction.




      1
             Wright, as Division Chief, was Bross’s third-level supervisor. Bross’s first-
level supervisor was Christopher Dyke and his second-level supervisor was Robert
Creecy.


04-3026                                 3
        Clark subsequently removed Bross for his misconduct, in accordance with the

advance notice and final decision procedures required by statute in 5 U.S.C. § 7513.

Clark’s final decision letter made Bross’s removal effective as of April 27, 2001. She

noted that Bross’s response had been unable to direct her “to a single case where an

employee accessed . . . images of minors, under the age of 16 years, engaged in

sexual acts, who was not removed from service” and that “[a]ccessing and/or

possessing child pornography, which victimizes children, . . . is decidedly more serious

than accessing or possessing a pornographic image of an adult.” (J.A. at 56.)

        In reaching her final decision for removal, Clark weighed mitigation factors

including Bross’s thirteen years of service, commendable performance, and the

absence of any prior disciplinary actions in his record.           She found these factors

outweighed by “the nature and seriousness of the offense, its relationship to [his] job as

a Computer Specialist, and its effect on [his] ability to satisfactorily perform [his] duties; .

. . [and] the notoriety of the offense and its impact upon the reputation of the agency.”

(Id.)   She further found that Bross was “unable to convince [her] that [he would] not

repeat this type of misconduct.” (Id.)

        Bross timely appealed the agency’s removal action to the Merit Systems

Protection Board (“the Board”). On January 7, 2002, an administrative judge reversed

the agency action, sustaining the merits of the agency’s charges against Bross but

nonetheless finding that the agency had violated the MOU and committed harmful error

by ordering the removal of Bross by decision of an agency official other than his Division

Chief, in a case that was not “precedent-setting.” Bross v. Dep’t of Commerce, DC-

0752-01-0472-I-1, slip op. at 5, 31 (M.S.P.B. Jan. 7, 2002) (“Initial Decision”).           On




04-3026                                    4
February 12, 2002, Commerce filed a petition for review, to which Bross responded on

April 2, 2002, and subsequently filed a cross-petition for review on April 3, 2002.

       On September 30, 2003, the Board issued its Final Order, sustaining the

agency’s removal action and reversing the Initial Decision “insofar as it found that the

agency committed harmful procedural error;” affirming the Initial Decision “insofar as it

found that the agency proved its charge;” and denying Bross’s cross-petition for review.

Bross, 94 M.S.P.R. at 664.

       The Board’s Final Order held that Census did not violate the terms of the MOU.

Id. at 667.   Specifically, the Board found that the MOU vested the authority in the

agency to remove precedent-setting cases (at the agency’s discretion) to a higher-level

official, and that Bross’s case was precedent-setting because “no Census Bureau

employee had ever been accused of or charged with the type of misconduct . . . [and]

the criminal nature . . . distinguishes this case significantly from the other [cases of

unauthorized computer use].” Id. at 666-67.

       Bross timely filed an appeal on November 3, 2003.            We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).

                                         DISCUSSION

       We must sustain the Board’s decision unless it is “found to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000).




04-3026                                  5
                                             I

       The sole question presented by this case is purely procedural, that is, whether

the petitioner was removed in violation of procedures specified in a labor agreement,

the Memorandum of Understanding.2 We find that substantial evidence on the record

supports the Board’s conclusion that the Memorandum of Understanding was not

violated.

       The statute and the Office of Personnel Management regulations do not

designate which level of agency official should make a decision on an adverse action

proposal.   However, the statute does provide that the agency and the union may

negotiate procedures regarding adverse actions.         Specifically, 5 U.S.C. § 7106(b)

states: “Nothing in this section shall preclude any agency and any labor organization

from negotiating . . . procedures which management officials of the agency will observe

in exercising any authority under this section; or . . . appropriate arrangements for

employees adversely affected by the exercise of any authority under this section by

such management officials.” The Supreme Court has held that the Board is required to

enforce the procedural protections provided by labor agreements. Cornelius v. Nutt,




       2
               Bross’s cross-petition for Full Board review alleged, inter alia, a denial of
constitutional due process. The Board dismissed the cross-petition, and found the
constitutional due process claim to have been made “in a summary fashion” and lacking
“a citation to any evidence in support of the assertion.” 94 M.S.P.R. at 668. Bross did
not raise the constitutional due process argument on this appeal, and expressly
disavowed the claim during oral argument. As Bross does not contend that the
procedure followed in this case violates due process, we do not address that question.
See generally Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985); Blank v. Dep’t
of the Army, 247 F.3d 1225 (Fed. Cir. 2001); Stone v. FDIC, 179 F.3d 1368 (Fed Cir.
1999); NEC Corp. v. United States, 151 F.3d 1361 (Fed. Cir. 1998); Utica Packing Co.
v. Block, 781 F.2d 71 (6th Cir. 1986); DeSarno v. Dep’t of Commerce, 761 F.2d 657
(Fed. Cir. 1985).


04-3026                                  6
472 U.S. 648, 663 (1985). Thus, we must determine whether the labor agreement in

this case was violated.

       Paragraph 1 of the MOU provides:

             Division Chiefs or their equivalents will normally serve as both
             Proposing and Deciding Official on conduct-based actions. (J.A. at
             78.)

      Paragraph 3(a) of the MOU states, in relevant part:

             A higher level management official may be the Proposing and
             Deciding Official for . . . conduct-based actions in precedent-setting
             cases.” (J.A. at 78 (emphasis added).)


      We think the agreement is clear that the question of discipline must be

addressed by the Division Chief or equivalent, unless (1) a higher level of management

makes a determination to serve as the Proposing and Deciding Official; (2) that

decision is based on the precedent-setting nature of the case; and (3) that the

determination of the precedent-setting nature of the case is reasonable. The appellant

contends that none of these requirements was satisfied here.

                                            II

      Bross first contends that the decision to elevate a case under Paragraph 3(a) of

the MOU must be made explicitly by a high-level management official and that no such

determination was made in this case. Rather, he contends that the decision to displace

Wright as the Proposing and Deciding Official was made by personnel staff.

Commerce contends that the decision to elevate was made in this case by Clark. The

undisputed record supports Commerce’s view that Clark made this determination.

Clark indicated to Wright during their first meeting that she “would likely be the . . .

proposing and deciding official in the case.”       (J.A. at 109.)    While the record



04-3026                                 7
demonstrates that staff from personnel did encourage Clark to take the case, as Bross

himself acknowledged, there is no evidence in the record that “the MOU placed the

personnel shop in other than an advisory role.” (Appellant’s Opp’n to Pet. for Review at

34.) The fact that other members of the agency at the time also decided that the matter

should be elevated to Clark’s level does not establish that Clark herself did not make

the decision.

      Second, the appellant claims that Clark did not herself make the determination

that the case was precedent-setting. While Clark did not explicitly state that she made

herself the decision-maker because of the precedent-setting nature of the case, she

was advised that “there had not been similar offenses [and] . . . it was one of the most

serious offenses that the Census Bureau [had] dealt with.” (J.A. at 110a.) She also

made it clear that she believed her authority to displace Wright rested in the MOU.

(J.A. at 110.) Although it would have been preferable for Clark’s determination of the

precedent-setting nature of the case to have been made in a more explicit fashion, the

plain language of the MOU does not so require; Paragraph 3(a) simply states that a

“higher level management official may be the Proposing and Deciding Official for . . .

conduct-based actions in precedent-setting cases.” (J.A. at 78.)

      Finally, Bross argues that even if a determination was made as to the precedent-

setting nature of Bross’s case, it was unreasonable.       We disagree.    We have no

difficulty concluding on this record that substantial evidence supports the Board’s

conclusion that the determination that Bross’s case was precedent-setting was

reasonable.




04-3026                                 8
        While Bross’s case was not the first case to involve unauthorized use of an

agency computer, the parties agree that it was the first case involving the unauthorized

use of a computer to access child pornography. The Board also found that the criminal

nature of Bross’s use of the computer distinguished this case significantly from other

Census cases, and that “on its facts, [Bross’s] case was precedent-setting.” 94 M.S.P.R.

at 667. We agree. The reasonableness of this determination is also demonstrated by

the validity of the agency’s concerns that unlimited access by the probation officer to

Bross’s work computer under the terms of his parole might negatively affect public trust

in the Census Bureau’s ability to protect the confidential and private nature of individual

data.

        Bross also argues that it is unreasonable to elevate a precedent-setting case

under Paragraph 3(a) of the MOU for the purpose of providing a harsher penalty.        We

disagree.    The MOU does not bar the agency from factoring in the likelihood that a

Division Chief’s potential decision will be overly lenient (or overly harsh) in relation to

the underlying conduct, and the impact that the imposition of a particular penalty would

have on the functioning of the agency in the future.    Clark was plainly concerned that

Wright might not impose sufficient discipline, and that the imposition of insufficient

discipline would create an undesirable precedent for the agency. She specifically noted

“the serious nature of the incident, the misdemeanor and because [Wright] and his staff

seemed – appeared to be so closely involved that they weren’t recognizing the potential

for adverse implications on the Census Bureau.” (J.A. at 109-10.) Personnel officials

advising Clark and responsible for assessing the impact of individual adverse action

determinations upon the rest of the agency found that “it would have created a very bad




04-3026                                  9
precedent to have had a very light penalty or a light penalty in this kind of situation.”

(J.A. at 168.)   We hold that it is reasonable to consider the impact that the penalty

imposed in a precedential case will have on the rest of the agency when deciding to

elevate the case to a higher-level official.

       We have concluded that the agency did not commit an error when Clark became

the proposing and deciding official.     Since there was no error, we need not address

whether the alleged error was harmful. See, e.g., Cheney v. Dep’t of Justice, 720 F.2d

1280, 1284 (Fed. Cir. 1983) (threshold condition for harmful error analysis is the

occurrence of a procedural error).

                                                III

       Bross also argues, relying on our decision in Boddie v. Dep’t of Navy, 827 F. 2d

1578 (Fed. Cir. 1987), that harmful error occurred because the decision to elevate his

case to a higher level was made too late. The relevant regulation in Boddie required

that “[d]iscipline of employees . . . should be effected at the lowest practical supervisory

level.” 827 F.2d at 1579. Boddie involved the last-minute substitution of a higher-level

supervisor for the employee’s immediate supervisor as the proposing official in

disciplinary proceedings which led to the employee’s demotion.             The higher-level

official took a harsher action than the immediate supervisor had already decided to

propose, as reflected in a draft letter of charges. Id. at 1579-80.

       Bross relies particularly on the following language from Boddie:

       We do not say that some other official could never be substituted
       for the first-level line supervisor, but if that were done it would have
       to be done before [the lower-level official] had begun to consider
       the charge and discipline, if any, to be levied on [the employee],
       and certainly before [the lower-level official] had made up his mind
       what the proposed discipline should be.



04-3026                                   10
Id. at 1580. We conclude that Boddie only bars a change in the proposing and deciding

official after the lower-level official reaches a decision.      Otherwise the level of the

decision-maker could never be elevated, since effectively the decision to elevate is

likely to occur only in cases where consideration has already begun at a lower level.

The holding of Boddie is in accordance with this principle. We concluded in Boddie that

it was “wholly improper” to delay elevation of an adverse action to a higher-level official

until after “staff-level personnel completely fail[] to persuade” the lower-level official that

more stringent measures are required, and the lower-level official has already finalized

a decision and “executed his own letter of charges. ” Id. at 1580. Thus, Boddie only

holds that elevation to a higher level is improper when the decision on the adverse

action has already been made.3

        This case is not like Boddie. Wright had not yet reached a decision as to the

appropriate penalty when he was displaced by Clark as the proposing and deciding

official.   Although he was more willing than personnel and legal staff to consider

penalties short of removal, he still was considering removal as an option, and one of his

colleagues even recalled his stating, prior to Clark’s decision to elevate the case, that

“he didn’t really want to be the person who would have to remove [Bross].” (Hr’g Tr. at




        3
              In this respect, we disagree with the Board’s earlier interpretation of
Boddie. See Wilkowski v. Dep’t of the Treasury, 86 M.S.P.R. 496, 498-99 (2000)
(finding replacement of the deciding official improper under Boddie when the original
officer had yet to finalize a decision).



04-3026                                   11
499).       Unlike Boddie, no decision had been made regarding the appropriate penalty

when Clark took over as the proposing and deciding official.4

                                         CONCLUSION

        For the foregoing reasons, we affirm the Board’s decision.

                                           AFFIRMED

                                              COSTS

        No costs.




        4
             To the extent that Bross urges that removal was improper because it was
based on only one instance of serious misconduct, we have already rejected that
proposition. See Guillebeau v. Dep’t of Navy, 362 F.3d 1329, 1334-37 (Fed. Cir. 2004).


04-3026                                  12
