Ana M. Ortiz v. Department of Health and Human Services , 824 F.2d 980 ( 1987 )

824 F.2d 980

Unpublished disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Ana M. ORTIZ, Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

Appeal No. 87-3004.

United States Court of Appeals, Federal Circuit.

June 19, 1987.

Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge.

BALDWIN, Senior Circuit Judge.

DECISION

1

The decision of the Merit Systems Protection Board (board), Docket No. NY07528610236, removing Ana M. Ortiz (petitioner) from the position of field representative with the Social Security Administration on the basis of insubordination and absence without leave, is affirmed.

OPINION

2

Petitioner has challenged removal as so harsh and disproportionate to the offense as to constitute an abuse of discretion. The charges are not challenged.

3

The choice of penalty for employee misconduct is left to the sound discretion of the agency. The court will defer to the agency's choice of penalty unless its severity appears "totally unwarranted." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984).

4

In light of the gravity of the charges sustained against petitioner, we find no abuse of discretion. The board has analyzed the relevant factors and determined that the penalty is within the bounds of reasonableness and bears a nexus to promoting the efficiency of the service. The board's decision is supported by substantial evidence and is not arbitrary, capricious, obtained without procedures required by law, rule or regulation, or otherwise not in accordance with law. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).