dissenting.
Contrary to the majority, I consider the Marshals Service’s conduct—deliberately changing the deciding official in midstream because of higher level dissatisfaction with that person’s determination of the penalty to be imposed on petitioner—was a harmful error vitiating the removal. As I understand it, the majority’s position flows entirely from its interpretation of the Marshals Service’s Manual as indisputably and necessarily placing plenary power over the adverse action in Mr. Mead as Assistant Director for Administration. Although that is a possible understanding of the Manual, it is not a necessary one, and I would read the Manual differently, in view of the actual practice, as authorizing delegation of full deciding authority to the deciding official—and in my view that is what appears to have been done here.
I
What actually happened in this case? The initial letter of charges of July 6, 1981 (though it did not use the term “deciding official”) plainly indicated that Marshal Garza would hold that post. Petitioner was told that he had “the right to reply to U.S. Marshal Rudy A. Garza orally, in writing, or both orally and in writing”. He was also expressly told: “If you submit a reply, full consideration will be given to it in deciding whether or not the Marshal will remove you from your position” (emphasis added). There was no mention in the charge letter of Assistant Director Mead (or his office). The later letter (September 4, 1981), changing the deciding official to Mr. Mead, said “that in the proposed notice of July 6, 1981 U.S. Marshal Rudy Garza was listed as the deciding official” and that “the deciding official in your case has been changed, and I [Mr. Mead] have been designated as the deciding official in this matter” (emphasis added).
At the Merit Systems Protection Board (MSPB) hearing, Marshal Garza testified without contradiction that he fully undertook and performed in the role of deciding official until it became clear to headquarters that he would not impose the penalty of removal on petitioner Cheney.1 He also testified, in response to questions as to his “understanding in past situations”,2 that “[t]hat was not my impression prior to this *1286incident”, i.e., that headquarters approval of his decision was not necessary. Similarly, he testified that he “wasn’t aware” that final action cannot be taken without the approval of the Personnel Branch and he was “quite surprised by it”, i.e., to learn that his decision was subject to approval. He testified, too, that, before he was removed, he understood that he had the same duties and responsibilities as Mr. Mead when the latter substituted himself. In other words, there is no question on this record that before he was removed Mr. Garza considered himself the full deciding official in every sense.3 That must also have been the way it appeared to petitioner from the letter of charges he received and from Marshal Garza’s actions.
At the MSPB hearing Mr. Mead testified differently. He said that (a) final disciplinary action cannot be taken without the formal approval of the Personnel Branch; (b) “from time to time” he removed deciding officials for bias or, for intending to make a decision contrary to policy or the best interests of the Service; and that (c) “The deciding official under our system is only making a recommendation. The final authority rests with me” ... “I have the final decision”, but “Not personally in all cases. The Employee Relations Branch exercises my authority in the matter, and if they find the decision proposed by the deciding official, or recommended by the deciding official, to be the best interest of the Service, that decision is made final. If they find that decision is not in the best interest of the Service, they bring it to my attention”, and Mr. Mead can and sometimes does remove the deciding official and substitute himself.4 Accordingly, since Mr. Mead had been alerted to Marshal Garza’s proposed sanction and after consideration thought it contrary to the Service’s best interest (fn. 1, supra), he removed the Marshal and substituted himself.
It is important that Mr. Mead never testified that his view of the role of the deciding official was well-known throughout the Service or to the public, let alone that it was known to Marshal Garza at the time the latter was initially designated deciding official. Aside from the bare existence of the Manual (to be discussed in Part III, infra), the record does not contain anything showing that Mr. Mead’s view was or should have been well-known within the Service.
II
The picture I have sketched in Part I, supra, is extraordinary. The petitioner was told, both in effect and in express words, that Marshal Garza was to be his “deciding official” — without qualification.- That designation imports, as the charging letter specifically said, that Marshal Garza was to be the one who would or would not “remove you from your position”. Marshal Garza fully believed that to be his position. If headquarters happened to agree with the Marshal, he would apparently take the final action and sign the letter of sanction.
However, Mr. Mead and his staff — physically removed from Texas where both Marshal Garza and Cheney were located — -believed, to the contrary, that the designated deciding official, literally denominated as such, was merely a recommender despite his title, and that final approval or action would have to be given or taken by headquarters. But there is no showing (aside from the bearing of the Manual) that this headquarters’ view was widely understood in the Service. It was not known to Marshal Garza. Apparently, it was unknown to petitioner, nor should it have been known (unless it was required by law).5
*1287In these circumstances it seems to me decidedly unfair to accept the “secret” headquarters position — so contrary to the outward manifestations leading to justified expectations — unless some governing provision of law demanded it. In the absence of such overriding compulsion, nothing could be more unfair than to remove the accepted deciding official (before completion of his task) simply because of the way he intended to decide the particular case.
Ill
We are told that the Manual was such a mandatory and controlling provision. I disagree. I do not read it as forbidding full delegation in this case to Marshal Garza as a genuine deciding official.
Four parts of the manual are relied on for the view that all adverse actions had to be taken or approved by Mr. Mead or the Personnel Division (which was a headquarters entity under Mr. Mead). For me, none forbids the delegation here. The first is paragraph 6. b, stating that the Assistant to the Associate Director for Administration (now the Assistant Director) “is responsible for deciding on disciplinary actions”. Placing ultimate “responsibility” for “deciding” disciplinary action on the Assistant Director does not necessarily say that he cannot delegate his authority to deciding officials — so long as he retains the power openly to change the system (not the individual deciding officer in the particular case) if he decides it is not working properly. “Responsibility” can have that connotation, and does not require that the Assistant Director decide every case.
Paragraph 13. c. (2) declares that the “employee’s reply/hearing report will be considered” by the Assistant Director. According to Mr. Mead’s testimony, that has not been the practice for years, except in the minority of instances where the Assistant Director substitutes himself as deciding official; in the light of that practice, I cannot read the provision as forbidding the delegation.
Paragraph 13. d. says that the “notice of final decision will be prepared for the signature of the ‘Assistant Director’ ”. That, too, has apparently not been the practice for quite a while (if it ever was) except where the Assistant Director is or becomes the denominated “deciding official”. Again, the practice persuades me that paragraph 13. d. does not forbid the delegation made here.
The provision of the Manual which gives me most pause is paragraph 9., stating that disciplinary actions may be initiated by a Marshal or staff officer, but “such actions may mot be accomplished without concurrence of the Personnel Management and Training Division”. Marshal Garza testified that he did confer with personnel of the Division on Cheney’s case, and apparently it was the practice to do so. But Garza also indicated (as pointed out above) that he did not believe he needed headquarters’ concurrence to impose a lesser penalty than the Division wished. In view of the circumstances described in Part I, supra, Marshal Garza’s position reflects a reasonable interpretation of paragraph 9. The literal wording of paragraph 9 — authorizing the field to initiate formal disciplinary proceedings but requiring headquarters Division concurrence for “accomplishment” of disciplinary actions — fits well with the concept that the purpose of such concurrence was to prevent excessive punishment by the deciding official, not to let the Division insist on greater punishment than the deciding official thought necessary. In the present situation, accordingly, full delegation was permissible.
I conclude, therefore, that the Manual did not preclude delegation to Marshal Garza finally to impose the penalty of suspension *1288he considered appropriate. On the contrary, in the absence of any such compulsion from the Manual, the circumstances affirmatively dictate the conclusion that Marshal Garza was so appointed.
IY
On the view I take, there can be no doubt that the agency’s error of changing the deciding official in medias res was harmful. Petitioner suffered the penalty of removal rather than the suspension that Marshal Garza would (in all probability) have imposed if he had continued, as he should have, as deciding official. The ruling in Depte v. United States, 715 F.2d 1481 (Fed. Cir.1983), that agency procedures need not meet due process or fairness standards, where a full de novo hearing is held before the MSPB, is inapplicable to matters of penalty. On that question, the board’s decision is not de novo but gives considerable deference to the employing agency. Here, for instance, the presiding official did not determine the sanction for herself, but merely concluded that the agency did not abuse its discretion or act unreasonably in imposing removal. It follows that the agency error directly affected the board’s action; if suspension had been ordered by Marshal Garza, the MSPB could not and would not have increased that sanction.
This error was adequately raised as harmful, not only before the presiding official but also in the petition for review by the full MSPB. That petition expressly referred to the substitution of Mr. Mead for Marshal Garza as a violation of due process. The MSPB was thus plainly alerted to the very problem now before us.
V
For these reasons, I would set aside the decision of the MSPB as erroneous, but without prejudice to the Marshals Service’s hereafter proceeding, if it now can, under proper procedures.
. Mr. Mead agreed that he did not alter the designation of the deciding official until he was satisfied that (a) petitioner should be removed, and (b) Marshal Garza would not impose that sanction.
. “Is it your understanding in past situations that any decision you might take as the deciding official has got to be approved in final form by the headquarters staffing personnel branch?”
. The Merit Systems Protection Board’s decision does not take issue with Marshal Garza’s testimony as to his understanding of his role and position.
. It is plain from Mr. Mead’s testimony that (a) the use of “deciding official” was not special for petitioner’s case but was ordinarily used, and (b) in form, the letter of charges sent to petitioner was the form ordinarily used. It is also clear from that testimony that, if deciding officials were not removed, they appeared to act as deciding officials.
. The only pertinent material published in the Code of Federal Regulations did not give any notice of the asserted practice or of the provi*1287sions of the Manual. The Government cites 28 C.F.R. 0.138, but that provision, both as issued July 1, 1980 and as next issued on November 1, 1981, simply delegated to the Director of the Marshals Service the Attorney General’s general power (with respect to the Marshals Service) over personnel administration, including demotion and separation. There is no specific provision relating to the handling of adverse actions, nor anything on subdelegation of adverse action power.