UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

CHRISTINE M. HALFACRE,
Appellant,

DOCKET NUMBER
DC-0752-12-0626-I-1

v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.

DATE: June 13, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph V. Kaplan, Esquire, and Adria S. Zeldin, Esquire, Washington,
D.C., for the appellant.
Michael W. Gaches, Esquire, Jennifer Kessler, Esquire, and Joseph Rieu,
Esquire, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member

FINAL ORDER
The appellant has filed a petition for review of the initial decision which
sustained the appellant’s removal. For the reasons set forth below, we GRANT

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the appellant’s petition and REVERSE the initial decision.

The appellant’s

removal is NOT SUSTAINED.
The appellant, a Supervisory Program Specialist, served as Chief of Staff
of the agency’s Transportation Security Administration’s (TSA) Office of
Security Capabilities (OSC). On April 6, 2012, the agency proposed her removal
based on lack of candor and misuse of government equipment. Initial Appeal File
(IAF), Tab 8 at 80-85. Under the lack of candor charge, the agency alleged that,
during an investigation conducted by the Office of Inspection into whether OSC’s
Assistant Administrator was involved in an inappropriate relationship with the
appellant, 2 she provided a sworn statement in which she denied having had sexual
relations with him, although she admitted that they had been in an intimate
relationship. Id. at 143. The agency further alleged that, several days later, when
the investigators told the appellant that they believed she had not been
forthcoming during the first interview, she provided another statement in which
she admitted that she had lacked candor during that first interview and that she
had, in fact, had sex with the Assistant Administrator on a number of occasions.
Id. at 205.

Under the misuse of government equipment charge, the agency

alleged that, during a 3-month period, the appellant misused the agency’s email
system by sending to, and receiving from, the Assistant Administrator
approximately 200 messages of a personal and flirtations nature, i.e., not for
official business, and that, during a 2-month period, she similarly misused her
government-issued Blackberry by sending to, and receiving from, the Assistant
Administrator approximately 1000 text messages of the same type. Id. at 81-82.
Following her oral and written replies to the proposal in which she admitted the

2

TSA’s Handbook to Management Directive (MD) 1100.75-3, Employee
Responsibilities and Conduct, warns against romantic or intimate relationships between
two employees who have a direct or indirect supervisory relationship. IAF, Tab 8 at
285.

 3
charged misconduct, id. at 35-38, 39-73, the agency issued a decision finding the
charges sustained, warranting the appellant’s removal, 3 id. at 4-11.
On appeal, the appellant argued that the penalty of removal was too harsh.
Id., Tabs 1, 17. She requested a hearing. Id., Tab 1. She subsequently alleged
that the agency had violated her due process rights. Id., Tab 22. Thereafter the
administrative judge issued an initial decision affirming the agency’s action. 4 Id.,
Tab 33, Initial Decision (ID) at 1, 17.

He found that the agency proved its

charges by preponderant evidence, ID at 4-8, that the appellant did not show that
the agency deprived her of due process, ID at 8-12, and that the agency showed
that removal was appropriate under the circumstances, ID at 12-17.
In her petition for review, the appellant argues that the administrative judge
erred in finding that the agency did not commit a due process violation, Petition
for Review (PFR) File, Tab 1 at 10-15, and in finding that removal was an
appropriate penalty, id. at 16-19, 22-25. The appellant also challenges several of
the administrative judge’s rulings made prior to and during the hearing. Id. at
20-22. Finally, the appellant asserts that the administrative judge demonstrated
sufficient bias to warrant his disqualification or reversal of the initial decision.
Id. at 25-26. In a separate pleading, the appellant renews her motion, previously
denied by the administrative judge, IAF, Tabs 29, 30, to proceed anonymously.
PFR File, Tab 2.

The agency has responded to the appellant’s petition and

renewed motion, id., Tab 4, and the appellant has replied to the agency’s
response, id., Tab 5.
The appellant first raised her claim of a due process violation in her
amended prehearing submission. IAF, Tab 22. She argued that, in discussing the
penalty factors supporting removal, the proposing official had noted certain
3
4

The Assistant Administrator resigned his position with the agency.

In so doing, the administrative judge properly applied the provisions of MD 1100-75.3
rather than 5 U.S.C. chapter 75. See Winlock v. Department of Homeland Security, 110
M.S.P.R. 521, ¶¶ 9-11 (2009), aff’d, 370 F. App’x 119 (Fed. Cir. 2010).

 4
similarities between the appellant’s first sworn statement and the statement
provided by the Assistant Administrator, id., Tab 8 at 82-83, but that the deciding
official considered those similarities as suggesting that the appellant and the
Assistant Administrator had coordinated their stories so as to avoid sharing with
the agency the full extent of their relationship, id. at 31.

The administrative

judge found no due process violation under Ward v. U.S. Postal Service, 634 F.3d
1274 (Fed. Cir. 2011), reasoning that, because the proposing official had pointed
out the similarities between the two statements, the appellant was provided notice
and an opportunity to respond to the official’s “apparent perception that [the
appellant] may have colluded with [the Assistant Administrator] to provide
similar statements . . . .” ID at 10.
On review, the appellant renews her argument that a due process violation
occurred because she was not on notice that she was being charged with engaging
in a coordinated effort to deceive which, in turn, was used to aggravate the
penalty, and similarly that she was not on notice, based on language in the
decision letter as supported by the deciding official’s hearing testimony, that the
charge of lack of candor, in essence, was converted to a charge of falsification.
When an agency intends to rely on an aggravating factor as the basis for
the imposition of a penalty, that factor should be included in the advance notice
of adverse action so that the employee will have a fair opportunity to respond to
it before the deciding official.

See Lopes v. Department of the Navy, 116

M.S.P.R. 470, ¶ 5 (2011). In Ward, our reviewing court explained that, if an
employee has not been given “notice of any aggravating factors supporting an
enhanced penalty,” an ex parte communication with the deciding official
regarding such factors may constitute a constitutional due process violation
because it potentially deprives the employee of notice of all the evidence being
used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280.
In determining whether a due process violation has occurred, the Board has held
that there is no basis for distinguishing between ex parte information provided to

 5
the deciding official and information personally known to him, if the information
was considered in reaching the decision and not previously disclosed to the
appellant. See Lopes, 116 M.S.P.R. 470, ¶¶ 10-13.
In this case, the proposing official stated in the notice of proposed removal
that there were similarities in the two statements, and she provided examples, but
she did not indicate that she attached any significance to that fact. IAF, Tab 8 at
82-83. During the hearing, she testified that the similarity did not impact her
ultimate decision to propose removal. Hearing Transcript (HT) at 28. On the
other hand, the deciding official specifically stated in the decision notice that he
“considered as an aggravating factor” the fact that the two statements were “very
similar” which “gave the impression that [the appellant and the Assistant
Administrator] coordinated [their] less-than-candid statements in an effort to
deceive the agency.” IAF, Tab 8 at 31, 177. The deciding official reiterated in
his hearing testimony that he had considered that factor. HT at 130. He also
acknowledged that in his deposition he stated that “if there is a deliberate attempt
– if there is evidence . . . to suggest it could be a deliberate attempt to mislead the
Agency that (sic) that . . . is a factor that weighs towards aggravating the
penalty.” Id. at 178-79. And, in his hearing testimony, the deciding official then
agreed that he had determined that the facts in this case gave the impression that
the appellant attempted to deceive the agency. Id. at 179.
The record evidence, therefore, supports a finding that, in reaching his
decision, the deciding official relied on information that the appellant had
attempted to deceive the agency and that he did so without disclosing such
information to the appellant. See Bennett v. Department of Justice, 119 M.S.P.R.
685, ¶ 10 (2013).

Whether a due process violation occurred under such

circumstances, however, depends on the following factors:

(1) whether the

information was new rather than cumulative, (2) whether the employee knew of
the information and had a chance to respond to it, and (3) whether the
information was of a type likely to result in undue pressure upon the deciding

 6
official to rule in a particular manner.

Stone v. Federal Deposit Insurance

Corporation, 170 F.3d 1368, 1377 (Fed. Cir. 1999); Lopes, 116 M.S.P.R. 470,
¶¶ 10-12. Here, the information was new, not cumulative, because intent is not
required to prove lack of candor, as charged in this case, but it is a feature of the
more serious charge of falsification. Rhee v. Department of Transportation, 117
M.S.P.R. 640, ¶ 10 (2012). The appellant did not know that the deciding official
considered that she had attempted to deceive the agency, and she did not have a
chance to respond to that information. While no clear evidence of undue pressure
exists in the record, the deciding official’s consistent statements in the decision
letter and in his hearing testimony are evidence of the materiality of his
perception that the appellant had attempted to deceive the agency in the deciding
official’s decision to remove her. See Lopes, 116 M.S.P.R. 470, ¶ 12. We find,
therefore, that the agency violated the appellant’s due process rights.
Because the agency violated the appellant’s due process guarantee to
notice, her removal must be cancelled. See Ward, 634 F.3d at 1280. The agency
may not remove the appellant unless and until she is afforded a new
“constitutionally correct removal procedure.” See Stone, 179 F.3d at 1377; see
also Ward, 634 F.3d at 1280.
Accordingly, we REVERSE the initial decision and DO NOT SUSTAIN the
removal action. 5
ORDER
We ORDER the agency to cancel the removal action and to restore the
appellant effective May 24, 2012. See Kerr v. National Endowment for the Arts,
5

Based on our disposition, we need not address the appellant’s claim on review that the
penalty is too severe. Finding that the appellant’s claims are insufficient to overcome
the presumption of honesty and integrity that accompanies administrative adjudicators,
we DENY the appellant’s motion to disqualify the administrative judge because of bias.
See Young v. U.S. Postal Service, 115 M.S.P.R. 424, ¶ 19 (2010). Similarly, in the
absence of unusual circumstances, we DENY the appellant’s renewed motion to proceed
anonymously. See Ortiz v. Department of Justice, 103 M.S.P.R. 621, ¶ 6 (2006).

 7
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
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
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.
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 to describe 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).
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 in 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).
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

 8
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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 United
States 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

 9
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
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.

FOR THE BOARD:

Washington, D.C.

______________________________
William D. Spencer
Clerk of the Board