                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JORGE CARBAJAL,                                 DOCKET NUMBER
                  Appellant,                         SF-0752-16-0005-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 16, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Raul Reyes-Maldonado, Barstow, California, for the appellant.

           Loren Baker, Barstow, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed 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
     the erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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 agency removed the appellant, a Lead Police Officer at its Marine
     Corps Logistics Base in Barstow, California, on a single charge of Failure to
     Report for a Random Drug Test. Initial Appeal File (IAF), Tab 4 at 14-27. He
     appealed his removal and, after holding the requested hearing, the administrative
     judge found that the deciding official had relied on an aggravating factor in his
     penalty analysis that the agency had failed to identify in the notice of proposed
     removal.   IAF, Tab 13, Initial Decision (ID).     Specifically, the administrative
     judge determined that the deciding official’s consideration of ex parte
     information—namely, that the appellant’s testimony in court would henceforth be
     suspect, such that it would jeopardize his involvement in future criminal law
     enforcement actions—was new information not previously disclosed to the
     appellant. ID at 4-6; IAF, Tab 4 at 16.
¶3        Under the requirements set forth in Giglio v. United States, 405 U.S. 150
     (1972), an agency is obliged to promptly disclose potential impeachment evidence
     concerning law enforcement officers, such as acts of misconduct, involved in a
                                                                                         3

     particular case. 2 Because the appellant had no opportunity to respond to the ex
     parte information, the administrative judge found it was the type of evidence
     likely to result in undue pressure on the deciding official to rule in a particular
     manner.    Thus, the administrative judge found that the agency violated the
     appellant’s right to due process and she reversed the agency’s action. ID at 4-6;
     see Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone
     v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.
     1999); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 10 (2012).
¶4         In its petition for review, the agency certifies that it has provided the
     requisite interim relief and argues that Giglio is not applicable to the
     determination of any due process violations.       Petition for Review (PFR) File,
     Tab 1 at 4, 8-14. The agency also argues that the notice of proposed removal
     informed the appellant that it had lost confidence in his ability to perform his
     duties, which includes his ability to testify in court. Id. at 14-16. It contends that
     its action does not violate the due process considerations set forth in Ward and
     Stone, asserts that any error “was not only harmless, but [was] dwarfed by the
     weight of evidence and seriousness of the offense,” and stresses that testifying is
     a small part of the appellant’s duties, which the deciding official only mentioned
     in dutifully fulfilling his obligation to conduct a proper analysis of the Douglas
     factors.   Id. at 22-24.   The appellant responds in opposition to the agency’s
     petition for review. PFR File, Tab 2.




     2
        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. The prosecutor will then exercise his discretion regarding whether the
     impeachment evidence must be turned over to the defense. 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. Thus, a case that depends primarily on
     the testimony of a Giglio-impaired witness is at risk. See Hathaway v. Department of
     Justice, 384 F.3d 1342, 1349 (Fed. Cir. 2004).
                                                                                      4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in
     Ward, 634 F.3d at 1279-80, and Stone, 179 F.3d at 1376-77, a deciding official
     violates an employee’s due process rights when he relies upon new and material
     ex parte information as a basis for his decisions on the merits of a proposed
     charge or the penalty to be imposed. Ward, Stone, and their progeny recognize,
     however, that not all ex parte communications rise to the level of due process
     violations; rather, only ex parte communications that introduce new and material
     information to the deciding official are constitutionally infirm. E.g., Solis,
     117 M.S.P.R. 458, ¶ 8.
¶6        The following factors are used to determine if ex parte information is new
     and material:   (1) whether the ex parte information introduced cumulative, as
     opposed to new, information; (2) whether the employee knew of the information
     and had an opportunity to respond; and (3) whether the communication was of the
     type likely to result in undue pressure on the deciding official to rule in a
     particular manner. Stone, 179 F.3d at 1377. Pursuant to the Ward/Stone line of
     authority, when an agency intends to rely on an aggravating factor as the basis for
     the imposition of a penalty, such factors must be included in the agency’s
     advance notice of the adverse action so that the employee will have a fair and
     complete opportunity to respond to those factors before the deciding official.
     Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 10 (2012).
¶7        The agency has not shown that the administrative judge erred in applying
     the Stone factors. As to the first two, we agree that the ex parte communication
     regarding the effect of the appellant’s misconduct on his ability to testify in
     criminal proceedings introduced new and material, and not merely cumulative,
     information. ID at 4-6; see Solis, 117 M.S.P.R. 458, ¶ 10 (deciding that reliance
     on testimonial impairment without providing notice and an opportunity to respond
     cannot be fairly deemed cumulative or immaterial).        The notice of proposed
     removal clearly did not mention the impact of the appellant’s misconduct on his
                                                                                        5

      future ability to testify in criminal matters. This omission precluded any response
      from him on the issue, and we agree that the deciding official’s citation of that
      factor in his analysis indicates that it is material. ID at 6; IAF, Tab 4 at 24-27;
      see Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 12 (2011) (stating
      that the deciding official’s testimony, that certain rumors about the appellant
      played even “a minor role” in his decision to remove him, “weigh[ed] strongly in
      favor” of finding that the new information was material); see also Silberman v.
      Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011). Moreover, regardless of
      the negligible portion of the appellant’s duties that actually involve testifying in
      court, the pertinent issue before us is the deciding official’s Douglas analysis of
      this factor. IAF, Tab 4 at 16. The deciding official’s consideration of this issue
      not only belies the agency’s insistence on review that the factor is of minimal
      importance, it also contradicts the agency’s assertion on review that the notice of
      proposed removal put the appellant on notice when the notice questioned his
      ability to perform the essential duties of his position. PFR File, Tab 1 at 14-16,
      22-24; IAF, Tab 4 at 24-26.
¶8          Consequently, as the administrative judge correctly found, because the
      agency violated the appellant’s due process rights, his removal must be reversed
      and he must be afforded a “new constitutionally correct removal procedure.” ID
      at 6; Solis, 117 M.S.P.R. 458, ¶ 10 (quoting Ward, 634 F.3d at 1280).

                                             ORDER
¶9          We ORDER the agency to cancel the removal and retroactively restore the
      appellant effective September 5, 2015. See Kerr v. National Endowment for the
      Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
      later than 20 days after the date of this decision.
¶10         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
                                                                                       6

      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶11        We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶12        No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶13        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
                                                                                  7

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
     You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  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:
                          United States 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).
      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
                                                                                  8

States     Code,     at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional         information     is   available    at   the    court’s   website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
         If you are interested in securing pro bono representation for 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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
