Case: 22-1187 Document: 99 Page: 1 Filed: 05/24/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUAN M. GOMEZ-RODRIGUEZ,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2022-1187
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-21-0264-I-1.
______________________
Decided: May 24, 2023
______________________
STEPHAN B. CALDWELL, Stephen B. Caldwell, LLC, Su-
wanee, GA, argued for petitioner.
SEAN KELLY GRIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.
______________________
Case: 22-1187 Document: 99 Page: 2 Filed: 05/24/2023
2 GOMEZ-RODRIGUEZ v. ARMY
Before MOORE, Chief Judge, PROST and STARK, Circuit
Judges.
STARK, Circuit Judge.
Juan M. Gomez-Rodriguez petitions for review of the
Merit Systems Protection Board’s (“Board”) decision af-
firming his removal as a Department of the Army Civilian
Police (“DACP”) officer in the Army’s Installation Com-
mand, Directorate of Emergency Services (“DES”) at Fort
Gordon, Georgia. We affirm.
I
As a DACP officer, Gomez-Rodriguez had access to
ALERTS, the Army Law Enforcement and Reporting
Tracking System. ALERTS is a database of police investi-
gations and incidents designed for official use only.
As a condition of employment, Gomez-Rodriguez was
required to maintain certification in the Individual Relia-
bility Program (“IRP”). The IRP obligates police officers to
“maintain a high standard of conduct at all times” and be
continuously evaluated in terms of their “character, trust-
worthiness, and fitness” to ensure they meet “the high
standards expected of law enforcement.” J.A. 348 (Army
Regulation (“AR”) 190-56 ¶¶ 3-3.a. and b).
As we will explain, the Army removed Gomez-Rodri-
guez based on his misuse of ALERTS and his failure to
maintain his IRP certification.
Several investigations preceded Gomez-Rodriguez’s re-
moval. First, pursuant to AR 15-6, the Army investigated
an allegation that Gomez-Rodriguez had improperly used
ALERTS to obtain information about an alleged crime com-
mitted by another officer, Michael Porreca (“AR 15-6 Inves-
tigation”). The AR 15-6 Investigation revealed that Gomez-
Rodriguez had searched for “Porreca” in ALERTS and ac-
cessed a file naming Porreca as a suspect in a larceny
Case: 22-1187 Document: 99 Page: 3 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 3
investigation. The Army also discovered that Gomez-Ro-
driguez had searched in ALERTS for information on an-
other police officer, Cory Burgess.
Second, the Defense Criminal Investigative Service
(“DCIS”) investigated the time and attendance practices of
multiple Fort Gordon DES police officers, including Gomez-
Rodriguez (“DCIS Investigation”). The DCIS Investigation
revealed discrepancies in the time and attendance records
of Gomez-Rodriguez and other officers.
Consequently, on August 19, 2020, the DES Deputy Di-
rector sent a memorandum to Gomez-Rodriguez concern-
ing his IRP certification. The Deputy Director stated that,
in light of the AR 15-6 and DCIS Investigations, he was
offering Gomez-Rodriguez an opportunity to provide input
regarding whether he could continue to retain his IRP cer-
tification. On August 28, 2020, Gomez-Rodriguez’s union,
the American Federation of Government Employees, re-
sponded with additional information supporting his IRP
certification.
On October 19, 2020, the Military Police Director and
Provost Marshal notified Gomez-Rodriguez via memoran-
dum that he was being permanently decertified from the
IRP because he lacked the “character, trustworthiness, and
fitness . . . consistent with the high standards expected of
law enforcement and security professionals.” J.A. 60 (cit-
ing AR 190-56 ¶ 3-3.b). The memorandum referenced the
AR 15-6 and DCIS Investigations, as well as an incident
that had occurred at Pointes West Army Resort, where
Gomez-Rodriguez had been found in possession of a person-
ally owned firearm without the required written permis-
sion. Gomez-Rodriguez had not been disciplined for the
Pointes West incident.
Also on October 19, 2020, the Deputy Director issued a
notice of proposed removal based on two charges: (1) con-
duct unbecoming a law enforcement officer and (2) failure
Case: 22-1187 Document: 99 Page: 4 Filed: 05/24/2023
4 GOMEZ-RODRIGUEZ v. ARMY
to maintain a condition of employment. The specification
supporting the first charge stated that Gomez-Rodriguez
had improperly searched for Porreca and Burgess in
ALERTS without an official purpose or authorization. The
specification supporting the second charge alleged that
Gomez-Rodriguez had failed to maintain his IRP certifica-
tion, yet maintenance of such certification was a condition
of his employment. In the proposed removal, the Deputy
Director explained that he had considered the AR 15-6 and
DCIS Investigations, the permanent IRP decertification,
and the firearm incident at Pointes West Army Resort. On
October 29, 2020, Gomez-Rodriguez submitted a written
response and, through his union representative, an oral re-
sponse to the notice of proposed removal.
On February 4, 2021, the deciding official issued a de-
cision sustaining the two charges and finding the penalty
of removal to be adequate and appropriate. On February
10, 2021, Gomez-Rodriguez was removed from his position.
On March 3, 2021, he appealed to the Board.
At the Board, an administrative judge (“AJ”) held a
hearing. Gomez-Rodriguez was among the witnesses who
appeared at the hearing. He testified that his ALERTS
searches were authorized because they occurred in connec-
tion with DUI training he was receiving from Porreca, in
the course of which Porreca told the class to search for sam-
ple DUI reports Porreca had written. According to Gomez-
Rodriguez, his ALERTS search for Burgess was motivated
by his desire to understand “his style of writing,” as Bur-
gess was his supervisor and would be “reviewing my cases.”
J.A. 486.
Another witness, Deputy Chief William Russ, testified,
however, that the manner in which Gomez-Rodriguez un-
dertook the searches would produce reports related to the
criminal investigations of his fellow officers, Porreca and
Burgess, rather than to yield reports written by them. The
Case: 22-1187 Document: 99 Page: 5 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 5
Board credited Russ’ testimony over that of Gomez-Rodri-
guez and, thus, found that Gomez-Rodriguez had improp-
erly used ALERTS.
The Board also concluded that maintenance of IRP cer-
tification was a condition of Gomez-Rodriguez’s employ-
ment and that his decertification was justified based on
information from the AR 15-6 and DCIS Investigations as
well as the Pointes West Army Resort firearm incident.
The Board rejected Gomez-Rodriguez’s contention that the
Army had deprived him of due process by considering the
DCIS Investigation, finding that the notice of proposed re-
moval had adequately informed him that this investigation
had identified significant negligence in his time and at-
tendance records.
Ultimately, the Board found a nexus between the
grounds for removal and a legitimate governmental inter-
est in efficiency of the service, and further found that re-
moval was reasonable based on the evidence, despite
Gomez-Rodriguez’s work record, length of service, previous
performance, and lack of disciplinary history. The Board’s
initial decision, issued by the AJ on September 24, 2021,
became final on October 29, 2021. On November 22, 2021,
Gomez-Rodriguez timely appealed to this Court. We have
jurisdiction under
5 U.S.C. § 7703(b)(1)(A).
II
In reviewing the record and the Board’s decision, we
must “hold unlawful and set aside any agency action, find-
ings, or conclusions 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).
On appeal, Gomez-Rodriguez argues (1) substantial ev-
idence does not support either charge against him; (2) the
Case: 22-1187 Document: 99 Page: 6 Filed: 05/24/2023
6 GOMEZ-RODRIGUEZ v. ARMY
Board did not apply the law for disparate penalties; and (3)
he was denied due process. 1 We address each contention
in turn.
A
Gomez-Rodriguez was charged with conduct unbecom-
ing a law enforcement officer and failure to maintain a con-
dition of employment. “[W]hen an agency uses such
general charging language, the Board must look to the
specification to determine what conduct the agency is rely-
ing on as the basis for its proposed disciplinary action.”
Russo v. U.S. Postal Serv.,
284 F.3d 1304, 1308 (Fed. Cir.
2002). Here, the specifications supporting the charges ex-
plained in detail that (1) Gomez-Rodriguez improperly
searched for Porreca and Burgess in ALERTS without an
official purpose or authorization, and (2) Gomez-Rodriguez
was permanently decertified from the IRP, yet mainte-
nance of such certification was a condition of his employ-
ment. Based on the evidence presented, which largely
consisted of the testimony of Deputy Chief Russ and
Gomez-Rodriguez, the Board determined that Gomez-Ro-
driguez’s ALERTS searches for Porreca and Burgess were
improper because they were unauthorized and not for an
official purpose. The Board further found that IRP certifi-
cation was a condition of Gomez-Rodriguez’s employment,
so his permanent IRP decertification barred his continued
employment.
1 Gomez-Rodriguez had also argued to the Board
that the Army discriminated against him based on race and
nationality, but these issues are not before us because he
did not raise them on appeal. See generally Toyama v.
Merit Sys. Prot. Bd.,
481 F.3d 1361, 1365 (Fed. Cir. 2007)
(noting that appeals from Board to this court are available
where appellant is “willing to waive discrimination is-
sues”);
5 U.S.C. § 7703(b)(2).
Case: 22-1187 Document: 99 Page: 7 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 7
Substantial evidence, which is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion,” Biestek v. Berryhill,
139 S. Ct. 1148, 1154
(2019), supports the Board’s determinations that both
charges against Gomez-Rodriguez were proven by the req-
uisite preponderance of the evidence. “[T]he possibility of
drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from
being supported by substantial evidence.” Consolo v. Fed.
Mar. Comm’n,
383 U.S. 607, 620 (1966).
Both Deputy Chief Russ and Gomez-Rodriguez testi-
fied before the AJ about the ALERTS searches Gomez-Ro-
driguez performed. According to Russ, the way in which
Gomez-Rodriguez conducted the searches would not have
resulted in reports authored by other officers, for example
Porreca, but instead “would only bring up their criminal
history.” J.A. 444. Gomez-Rodriguez gave the AJ a differ-
ent account, insisting he was only looking for reports writ-
ten by, and not about, Porreca and Burgess. J.A. 476. The
state of the record called upon the AJ to make a credibility
finding, and she did so, explaining that Russ – who “helped
develop the [ALERTS] program” and was “knowledgeable
of the database” – was “straightforward and direct in his
testimony” and exhibited a “demeanor throughout [that]
was confident and assured,” while, “[i]n contrast,” Gomez-
Rodriguez’s testimony was “less than forthright” and left
“the impression that he would say whatever is necessary to
save his position.” J.A. 15.
While the AJ could have credited Gomez-Rodriguez’s
testimony and found for him, she was likewise free to credit
the contrary evidence and find against him. See King v.
Dep’t of Health & Hum. Servs.,
133 F.3d 1450, 1453 (Fed.
Cir. 1998). We will not disturb such credibility determina-
tions where, as here, they are not “inherently improbable
or discredited by undisputed evidence or physical fact.”
Case: 22-1187 Document: 99 Page: 8 Filed: 05/24/2023
8 GOMEZ-RODRIGUEZ v. ARMY
Hanratty v. Dep’t of Transp.,
819 F.2d 286, 288 (Fed. Cir.
1987).
It is true, as Gomez-Rodriguez emphasizes, that Por-
reca acknowledged he had told Gomez-Rodriguez (and
other members of his DUI class) to use Porreca’s name to
search ALERTS. This does not, however, undermine the
AJ’s finding that the details of Gomez-Rodriguez’s particu-
lar searches show he was searching in a manner distinct
from what Porreca had directed. The AJ credited Deputy
Chief Russ’ testimony about the specifics of Gomez-Rodri-
guez’s searches, including that he had searched “Porreca”
three times, and rejected Gomez-Rodriguez’s competing ac-
count. The AJ’s credibility determination and Russ’ testi-
mony constitute substantial evidence for the finding that
Gomez-Rodriguez’s searches were improper and unauthor-
ized.
Gomez-Rodriguez also argues there were no standard
procedures concerning authorized or unauthorized
ALERTS usage at Fort Gordon. While the record shows
that the standards were clarified in the course of the inves-
tigations and audits relating to this case, see, e.g., J.A. 83
(June 2021 Memo stating: “Unauthorized usage of
ALERTS is exceeding access by reviewing information that
you do not have a need to know about and providing infor-
mation to others without a need to know, or an official pur-
pose.”), the impropriety of Gomez-Rodriguez’s conduct was
already sufficiently clear at the time he undertook his
searches. For example, at that time, Gomez-Rodriguez was
subject to limitations described in the Guidelines from the
Office of the Provost Marshal General relating to AR 190-
45, which provided (among other things): “Unauthorized
use, which includes requests, dissemination, sharing, cop-
ying or receipt of information within . . . ALERTS, could
result in civil proceedings against . . . any user . . . . Viola-
tions or misuse may also subject the user . . . to adminis-
trative sanctions and possible disciplinary action by their
Case: 22-1187 Document: 99 Page: 9 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 9
command . . . .” Suppl. App. 1. Additionally, each ALERTS
user saw one or more screens notifying the user that
ALERTS is to be used only for official use on a need-to-
know basis, with due consideration for sensitive and per-
sonal information. J.A. 111, 113, 630-31; see also J.A. 442-
43 (Deputy Chief Russ testifying that “[o]n the original
screen, before you log into Alerts it lists that this is for of-
ficial use only, law enforcement”). Investigator Jack Frost
and Deputy Chief Russ also testified that official use of
ALERTS meant “for law enforcement purposes.” J.A. 436;
see J.A. 432 (“[I]t was . . . unofficial, which means it was
unauthorized.”) (ellipses in original), 434 (“The authorized
use comes from a need to know, and you know, not using it
for personal . . . use.”) (ellipses in original); see also J.A. 466
(Hugh Hardin, deciding official, testifying that “accessing
of the ALERTS database without an official law enforce-
ment purpose did constitute an unauthorized, inappropri-
ate use of the system”).
With respect to the IRP certification charge, it is undis-
puted that maintaining IRP certification was a condition of
Gomez-Rodriguez’s employment. Gomez-Rodriguez also
does not dispute that he was decertified. Plainly, then,
substantial evidence supports the Board’s decision to sus-
tain the Army’s finding on the second charge.
Therefore, we conclude that substantial evidence sup-
ports the Board’s findings sustaining both charges brought
against Gomez-Rodriguez.
B
Gomez-Rodriguez has not shown that the Board erred
in its application, or non-application, of the law concerning
disparate penalties and comparators.
The relevant Douglas factor is the “consistency of the
penalty with those imposed upon other employees for the
same or similar offences.” Douglas v. Veterans Admin., 5
Case: 22-1187 Document: 99 Page: 10 Filed: 05/24/2023
10 GOMEZ-RODRIGUEZ v. ARMY
M.S.P.B. 313, 332 (1981). As part of a challenge to the rea-
sonableness of a penalty, an employee looking “[t]o estab-
lish disparate penalties” “must show that the charges and
circumstances surrounding the charged behavior [of him-
self] are substantially similar [to those of others], which in-
cludes proof that the proffered comparator . . . was
subjected to the same standards governing discipline.”
Miskill v. Soc. Sec. Admin.,
863 F.3d 1379, 1384 (Fed. Cir.
2017) (internal quotation marks omitted). Evaluation of a
disparate penalties contention entails, “by [its] nature, a
case-dependent, highly factual inquiry . . . not amenable to
bright-line rules.”
Id.
Gomez-Rodriguez’s disparate penalties argument fails,
first, because it is forfeited. At no point before the Board
did Gomez-Rodriguez contend that specific Army employ-
ees conducted unauthorized ALERTS searches and the
Army then treated these similarly situated employees
more leniently, thereby rendering the removal of Gomez-
Rodriguez unreasonable in light of the Douglas factors.
To avoid forfeiture and be available for appellate re-
view, an issue first “must be raised with sufficient specific-
ity and clarity that the tribunal [being reviewed] [wa]s
aware that it must decide the issue.” Wallace v. Dep’t of
the Air Force,
879 F.2d 829, 832 (Fed. Cir. 1989). Having
reviewed the record citations to which Gomez-Rodriguez
directs us, see Appellant’s Supp. Br. at 2, we find no in-
stance in which he put the Board on notice that he was
challenging the reasonableness of the penalty of removal
on the basis that it was inconsistent with discipline im-
posed on others for similar misconduct.
Shortly before the hearing, Gomez-Rodriguez filed a
motion to put before the Board the Army’s June 9, 2021
Memorandum (“June 2021 Memo”) entitled, “Findings and
Recommendations for Army Regulation (AR) 15-6 Investi-
gation – Alleged Improper Usage of Army Law
Case: 22-1187 Document: 99 Page: 11 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 11
Enforcement Reporting and Tracking System,” which was
based on audits undertaken in November 2020 and May
2021. J.A. 66, 80-85. So the Board had in its record the
June 2021 Memo, which reports that the audit found (in
addition to Gomez-Rodriguez’s searches) 11 instances over
a three-year period in which a total of five DES officers
searched ALERTS for data on other DES employees. J.A.
80-85. The June 2021 Memo does not show what discipline,
if any, these other officers received, but it does recommend
one of them for “administrative action.” J.A. 85. 2
Even assuming that Gomez-Rodriguez’s motion was in-
tended to put the Board on notice that he was making a
disparate penalties argument, 3 it is easy to understand
2 While the June 2021 Memo was prepared too late
to be considered by the deciding official, Hardin, at the time
he ordered the removal of Gomez-Rodriguez in February
2021, Gomez-Rodriguez was free to ask the Board to con-
sider it in weighing the Douglas factors. See Norris v. Sec.
& Exch. Comm’n,
675 F.3d 1349, 1357 (Fed. Cir. 2012). As
we explain, however, he failed to raise the issue with suffi-
cient specificity and clarity to make the Board aware it was
an issue it needed to decide. See Wallace,
879 F.2d at 832.
3 Gomez-Rodriguez’s motion to add the June 2021
Memo to the AJ hearing record refers to a “Union Exhibit
C” – which the parties do not appear to have included in
their joint appendix – which he describes as “the Audit re-
port of all users that accessed Officer Porreca’s name and
other names.” J.A. 67. This is likely a November 2020 list
prepared by Deputy Chief Russ identifying all the officers
who searched ALERTS for the names of DES employees,
which served as the starting point for the further investi-
gation that resulted in the June 2021 Memo. See Appel-
lant’s Br. at 10 (“The May 12, 2021 Audit served to clarify
Case: 22-1187 Document: 99 Page: 12 Filed: 05/24/2023
12 GOMEZ-RODRIGUEZ v. ARMY
the November 16, 2020 Audit.”). Gomez-Rodriguez’s mo-
tion then suggests that the June 2021 Memo “contains rel-
evant information and gives context to Union Exhibit C,”
adding:
Under the Douglas[] factors that the Agency
did not consider, it goes to the Clarity of No-
tice that the Appellant was on as to what de-
fines Routine use. Further, it explains
penalties to those interviewed for a proper
comparator analysis. This new Report [i.e.,
the June 2021 Memo] gives context to those
names to properly make a comparator analy-
sis like New AR-15 Findings.
J.A. 67 (internal emphasis omitted). Later the motion
states:
Here, the Union has introduced Exhibit C, an
Audit of all those police officers in DES at
For[t] Gordon that accessed Officer Porreca’s
name. The Audit by itself does not allow this
Court to make proper comparisons for
d[i]sp[a]rate discipline as the Appellant has
raised as a defense. This new AR-15 Report
presents findings and interviews of those that
accessed Officer Porreca’s name, their rea-
sons, and if they have been disciplined for
that action. Without this Report, this Court
cannot properly give context around to the
names listed in Union Exhibit C to make the
proper comparator analysis for a decision.
J.A. 69. Despite the motion’s references to a “proper com-
parator analysis,” neither in the motion nor anywhere else
Case: 22-1187 Document: 99 Page: 13 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 13
how the Board could have missed it. The motion identifies
by name only one other officer, Elvis Rondon, J.A. 67-68,
who the June 2021 Memo reports “searched his supervi-
sor’s name in ALERTS to find narrative statements as part
of his official duties.” J.A. 83. The report does not state or
even suggest that Rondon’s search was inconsistent with
his supervisor’s instructions, making it difficult (if even
possible) to discern that Gomez-Rodriguez believed Rondon
was a proper comparator.
During the Board hearing before the AJ, counsel for
Gomez-Rodriguez examined the deciding official, Hugh
Hardin, on the issue of comparators. Hardin was asked
whether, assuming hypothetically he had been presented
comparators, he would have considered them in deciding
how to discipline Gomez-Rodriguez, to which Hardin said
he would. J.A. 469. Hardin further explained the reality
that Gomez-Rodriguez “was the only one that was pre-
sented to me for conduct unbecoming with the underlying
action of searching ALERTS inappropriately in an unau-
thorized manner.”
Id. Counsel for Gomez-Rodriguez also
questioned his own client about comparators. J.A. 483.
Gomez-Rodriguez interpreted the November 2020 audit as
identifying 14 officers who had conducted ALERTS
searches just as he had, and yet, to his knowledge, none of
them “faced discipline or removal.”
Id. There is, however,
no documentary support in the record for these contentions
and Gomez-Rodriguez never used his (or any other) testi-
mony to develop an argument.
Given Gomez-Rodriguez’s failure to articulate his
Douglas comparator argument with any clarity, the Army
did Gomez-Rodriguez clearly identify the purportedly
proper comparators, state that they were treated differ-
ently from himself, or ask the Board to determine he was
subjected to a disparate penalty.
Case: 22-1187 Document: 99 Page: 14 Filed: 05/24/2023
14 GOMEZ-RODRIGUEZ v. ARMY
was never alerted to the prospect that it needed to develop
a record with respect to the purported comparators. As a
result, the Board was not provided by either party with the
evidence on which such a highly fact-specific issue needs to
be decided. And, again, the Board was not made aware by
Gomez-Rodriguez that it had to decide the Douglas com-
parator issue to resolve this case. Accordingly, Gomez-Ro-
driguez forfeited the comparator contention he seeks to
press on appeal.
In any event, even if Gomez-Rodriguez had adequately
presented the Douglas comparator issue to the Board, we
would still affirm. As an initial matter, the Board did not
completely overlook the evidence of the other 11 searches
of DES employee names in ALERTS. Instead, the Board
expressly referenced Deputy Chief Russ’ testimony that
“he was asked to audit ALERTS for searches by officers,
that the audit covered three years’ worth of searches, and
that the audit revealed additional officers had conducted
name searches of individuals [working] in DES.” J.A. 23.
While the Board did not go on to address this evidence in
connection with its Douglas analysis, 4 we will not presume
that the Board entirely failed to consider the comparator
evidence. See Medtronic, Inc. v. Daig Corp.,
789 F.2d 903,
906 (Fed. Cir. 1986) (“We presume that a fact finder re-
views all the evidence presented unless [it] explicitly ex-
presses otherwise.”).
More importantly, Gomez-Rodriguez has failed to per-
suade us that his comparator evidence supports a
4 Gomez-Rodriguez’s contentions regarding unequal
treatment largely went to his race and nationality discrim-
ination claims, which the Board did explicitly address, and
the rejection of which is not before us on appeal. J.A. 23-
24.
Case: 22-1187 Document: 99 Page: 15 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 15
conclusion that his removal was unreasonable. As already
noted, Gomez-Rodriguez did not present sufficient evi-
dence of what (if any) discipline was imposed on other em-
ployees for the same or similar offenses he committed.
There was no evidence before the Board that others who
conducted unauthorized ALERTS searches received less
harsh penalties.
Moreover, the only evidence Gomez-Rodriguez points
to, the June 2021 Memo, explains that five other officers
conducted ALERTS searches on DES employees, and of
them only one – Officer Hockenbery – was even arguably
similarly situated, and that officer was recommended for
administrative action. J.A. 82-85. The other four officers
were either instructed by a superior to conduct the search
in question (Keim) or did the searches as part of their offi-
cial duties (Darby, Peloquin, Rondon). Id.; see also J.A. 74
(Army approving investigating officer’s findings and refer-
ring for further consideration the question of “what, if any,
disciplinary action is appropriate for Sergeant Rory Keim
and Sergeant Scott Hockenberry”). In short, Gomez-Rodri-
guez has not shown that any similarly-situated officer (i.e.,
one who conducted an unauthorized ALERTS search) was
treated differently (i.e., less harshly) than him. See
Miskill,
863 F.3d at 1384 (“To establish disparate penal-
ties, the employee must show that the charges and circum-
stances surrounding the charged behavior are
substantially similar.”). 5
5 We note that if Gomez-Rodriguez had presented
the issue with sufficient specificity, and if the record had
shown similarly situated employees who were potentially
treated less harshly, the burden would then have shifted to
the agency to “prove a legitimate reason for the difference
in treatment by a preponderance of the evidence.” Miskill,
Case: 22-1187 Document: 99 Page: 16 Filed: 05/24/2023
16 GOMEZ-RODRIGUEZ v. ARMY
Thus, again, we affirm the Board’s finding that the
penalty of removal was reasonable.
C
Gomez-Rodriguez has also failed to show that he was
denied due process. He argues that the Army’s notice of
proposed removal and its decision to remove him did not
inform him that the IRP memorandum was the basis of the
charge. He further contends that the Board improperly re-
lied on the specification in the first charge (improper
ALERTS usage) to sustain the second charge (IRP decerti-
fication).
To meet the requirements of due process, Gomez-Ro-
driguez had to be provided notice and an opportunity to be
heard. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S.
532, 546 (1985); see also
5 U.S.C. § 7513(b) (setting out stat-
utory requirements of notice and opportunity to be heard).
Notice requires provision of sufficient detail so an employee
may provide an informed response. See, e.g., LaChance v.
Merit Sys. Prot. Bd.,
147 F.3d 1367, 1371 (Fed. Cir. 1998).
Due process was satisfied here. The notice of proposed
removal outlined the two charges, along with their respec-
tive specifications (improper ALERTS usage and IRP de-
certification). The notice referenced the DCIS
Investigation and the Pointes West Army Resort incident,
although it did not identify them as bases for removal. The
notice identified the IRP certification requirement and that
Gomez-Rodriguez was decertified. Gomez-Rodriguez was
given the opportunity to respond to the charges in the no-
tice, and he did so.
863 F.3d at 1384. Here, because of Gomez-Rodriguez’s fail-
ings the burden did not shift to the Army.
Case: 22-1187 Document: 99 Page: 17 Filed: 05/24/2023
GOMEZ-RODRIGUEZ v. ARMY 17
Nor was there any improper reliance by the Board on
the first charge in deciding to sustain the second charge.
The substance of the Board’s findings on both charges
tracked how the charges were made in the notice of pro-
posed removal. The two charges were related – that is, at
least part of the reason Gomez-Rodriguez lost his IRP cer-
tification was due to his ALERTS searches – and the decid-
ing officer candidly acknowledged that had Gomez-
Rodriguez not improperly accessed ALERTS, the second
charge would likely not have been applicable. J.A. 472.
But none of this provides the basis for a meritorious due
process claim.
In sum, Gomez-Rodriguez was notified of the Army’s
reasons for its proposed actions and had an opportunity to
respond. “Those are the limits of our review.” Adams v.
Dep’t of Def.,
688 F.3d 1330, 1334 (Fed. Cir. 2012).
III
We have considered Gomez-Rodriguez’s additional ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm.
AFFIRMED
COSTS
No costs.
