Tartaglia v. Department of Veterans Affairs , 858 F.3d 1405 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
MARK J. TARTAGLIA,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-2226
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-1108-I-1.
______________________
Decided: June 8, 2017
______________________
NEIL CURTIS BONNEY, Bonney, Allenberg & O’Reilly,
PC, Virginia Beach, VA, argued for petitioner.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
REGINALD T. BLADES.
______________________
Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
2 TARTAGLIA v. DEP’T OF VETERANS AFFAIRS
Petitioner Mark J. Tartaglia appeals a final order of
the Merit Systems Protection Board (“MSPB”), which
upheld his removal from employment with the U.S.
Department of Veterans Affairs (“the VA”). See Tartaglia
v. Dep’t of Veterans Affairs, No. DC-0752-14-1108-I-1,
2016 WL 2587964, at ¶¶ 1, 16 (M.S.P.B. May 5, 2016).
Because the MSPB abused its discretion when it upheld
Mr. Tartaglia’s removal, we vacate and remand.
BACKGROUND
The parties do not dispute the background facts rele-
vant here. Mr. Tartaglia served as a Supervisory Security
Officer and the Chief of Police at the VA’s Veterans Ad-
ministration Medical Center in Hampton, Virginia. J.A.
110. 1 The VA proposed Mr. Tartaglia’s removal based on
three charges, some with multiple specifications: 2
(1) “Abuse of Authority” (six specifications); (2) “Lack of
Candor” (two specifications); and (3) “Misuse of Govern-
ment Property” (one specification). J.A. 113–15. The VA’s
deciding official rejected Charge 3 as unsubstantiated,
sustained Charge 1 based on five of the six specifications
and Charge 2 based on both specifications, and removed
Mr. Tartaglia from service. See J.A. 107–12; see also J.A.
81. Mr. Tartaglia subsequently appealed to the MSPB.
In an initial decision, an administrative judge (“AJ”)
affirmed Mr. Tartaglia’s removal. Tartaglia v. Dep’t of
Veterans Affairs, No. DC-0752-14-1108-I-1 (M.S.P.B. Oct.
1 Pages 1 to 79 of the Joint Appendix accompany
Mr. Tartaglia’s opening brief, and pages 80 to 121 of the
Joint Appendix are attached to the Government’s re-
sponse brief.
2 Each independent “specification” constitutes a
separate act or event that supports a charge. See, e.g.,
Tompkins v. U.S. Postal Serv., 415 F. App’x 226, 228 (Fed.
Cir. 2011).
TARTAGLIA v. DEP’T OF VETERANS AFFAIRS 3
30, 2015) (J.A. 80–94). The AJ found that the VA failed to
prove either of the two specifications of Charge 2 and that
it proved only three of the five specifications of Charge 1.
J.A. 81–86. As to the three specifications of Charge 1, Mr.
Tartaglia admitted to one of them—Specification 5. J.A.
85. That specification charged Mr. Tartaglia with in-
structing a subordinate to drive him in a government-
owned vehicle to run a personal errand while on duty.
J.A. 85. Although the AJ did not sustain all of the VA’s
charges for removal, she concluded that the VA reasona-
bly removed Mr. Tartaglia based on the three remaining
specifications of Charge 1. J.A. 87–89. Mr. Tartaglia
subsequently petitioned the full MSPB for review of the
AJ’s initial decision.
In its Final Order, the MSPB sustained Mr. Tar-
taglia’s removal. See Tartaglia, 2016 WL 2587964, at
¶ 16. Although the MSPB found that the VA failed to
prove two of the three remaining specifications of Charge
1, id. at ¶¶ 6–13, it upheld Mr. Tartaglia’s removal based
solely on Specification 5 to Charge 1, id. at ¶¶ 14–16. In
support of its conclusion, the MSPB found that
(1) removal fell within the VA’s Table of Penalties for the
misconduct in question; (2) Mr. Tartaglia’s “misconduct
was particularly serious because it went beyond merely
misappropriating a Government vehicle, but also included
instructing a subordinate to help him do so”;
(3) mitigating factors such as Mr. Tartaglia’s “outstanding
work record and lack of prior discipline” were “tem-
per[ed]” because Mr. Tartaglia had served with the VA for
“only approximately [four] years”; and (4) Mr. Tartaglia
expressed remorse “only after initially denying the mis-
conduct to [VA] investigators.” Id. at ¶ 16 (citations
omitted). The MSPB concluded that these factors, when
considered against the higher standards of conduct that
attach to supervisors and law enforcement officials like
Mr. Tartaglia, supported the VA’s decision to remove Mr.
Tartaglia. See id.
4 TARTAGLIA v. DEP’T OF VETERANS AFFAIRS
The instant appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
We affirm an MSPB decision unless, inter alia, it con-
stitutes “an abuse of discretion.” 5 U.S.C. § 7703(c)(1)
(2012). The MSPB abuses its discretion when “the deci-
sion is based on an erroneous interpretation of the law, on
factual findings that are not supported by substantial
evidence, or represents an unreasonable judgment in
weighing relevant factors.” Gose v. U.S. Postal Serv., 451
F.3d 831, 836 (Fed. Cir. 2006) (internal quotation marks
and citation omitted).
II. The MSPB Abused Its Discretion in Upholding Mr.
Tartaglia’s Removal
Mr. Tartaglia argues that the MSPB abused its dis-
cretion in sustaining the VA’s decision to remove him
from employment. See Pet’r’s Br. 5–13. After setting
forth the applicable framework, we address Mr. Tar-
taglia’s specific arguments in turn.
A. Legal Framework
After the MSPB completed its review in this case, it
sustained only one of the specifications forming the basis
for Mr. Tartaglia’s removal by the VA. See Tartaglia,
2016 WL 2587964, at ¶¶ 6–16. In Lachance v. Devall, we
stated that,
[w]hen the [MSPB] sustains fewer than all of the
agency’s charges, the [MSPB] may mitigate to the
maximum reasonable penalty so long as the agen-
cy has not indicated either in its final decision or
during proceedings before the [MSPB] that it de-
sires that a lesser penalty be imposed on fewer
charges.
TARTAGLIA v. DEP’T OF VETERANS AFFAIRS 5
178 F.3d 1246, 1260 (Fed. Cir. 1999). It is undisputed
that, in this case, the VA did not indicate either in its
final decision or during proceedings before the MSPB that
it desired that a lesser penalty be imposed based upon
Charge 1, Specification 5, alone. In ruling on Mr. Tar-
taglia’s petition, the MSPB therefore recognized that it
was in a Lachance situation. See Tartaglia, 2016 WL
2587964, at ¶ 15. Thus, it was for the MSPB to determine
the “maximum reasonable penalty” to be imposed upon
Mr. Tartaglia.
In Douglas v. Veterans Administration, the MSPB set
forth twelve factors to be considered in determining the
appropriate penalty for the subject employee. See 5
M.S.P.B. 313, 331–32 (1981); see also Zingg v. Dep’t of
Treasury, 388 F.3d 839, 844 (Fed. Cir. 2004) (explaining
that Douglas “requires” the employing agency to consider
the twelve factors but “does not mandate that any partic-
ular factor be given special treatment[] or that all factors
be considered in every case without regard to their rele-
vancy”). When (as here) the MSPB itself must determine
the penalty, the MSPB is required to “independently
balance the relevant Douglas factors with heightened
sensitivity when reviewing agency penalties upon fewer
charges than those brought by the agency.” Lachance,
178 F.3d at 1257. The Douglas factors the MSPB consid-
ered relevant here were “the employee’s past disciplinary
record” and “past work record, including length of service,
performance on the job, ability to get along with fellow
workers, and dependability.” Douglas, 5 M.S.P.B. at 332;
see Tartaglia, 2016 WL 2587964, at ¶ 16 (analyzing these
factors). We defer to the MSPB’s choice of penalty “unless
the penalty exceeds the range of permissible punishment
specified by statute or regulation, or unless the penalty is
so harsh and unconscionably disproportionate to the
offen[s]e that it amounts to an abuse of discretion.” Zingg,
388 F.3d at 843 (emphasis added) (internal quotation
marks and citation omitted).
6 TARTAGLIA v. DEP’T OF VETERANS AFFAIRS
B. The MSPB’s Final Order Rested Upon Unsupported
Factual Findings
Mr. Tartaglia raises a series of arguments alleging
that the MSPB abused its discretion in sustaining the
VA’s decision to remove him from employment. See Pet’r’s
Br. 5–13. Several of these arguments ask us to reweigh
the evidence, see id. at 8–10 (inviting the court to reweigh
the evidence as to Mr. Tartaglia’s prior disciplinary
record, his remorse over the misconduct, and his intent),
which we may not do, see Zingg, 388 F.3d at 844 (explain-
ing that “the weight to be given the relevant [Douglas]
factors lies primarily within the agency’s broad discretion
to determine the appropriate penalty for a particular
case”).
Those points notwithstanding, we do agree with Mr.
Tartaglia that the MSPB abused its discretion in sustain-
ing the VA’s imposition of the penalty of removal. Specifi-
cally, Mr. Tartaglia contends that substantial evidence
does not support the MSPB’s factual finding as to the
length of his Federal Government service and that the
erroneous finding infected the MSPB’s analysis of certain
Douglas factors. See Pet’r’s Br. 7–8, 11–12. We agree.
The record establishes that the MSPB miscalculated
the length of Mr. Tartaglia’s federal service. The MSPB
found that Mr. Tartaglia served the VA for “approximate-
ly [four] years,” Tartaglia, 2016 WL 2587964, at ¶ 16, but
the record shows that Mr. Tartaglia actually worked for
the VA for fourteen years and that he served in the mili-
tary for another five years, 3 see J.A. 27–28 (discussing his
3 In its brief, the Government concedes that the
MSPB erred. See Resp’t’s Br. 11 (“Although Mr. Tartaglia
is correct that he worked for the VA for more than four
years, the MSPB’s decision correctly reflects that Mr.
Tartaglia was employed for only four years at the VA
TARTAGLIA v. DEP’T OF VETERANS AFFAIRS 7
VA service), 70–72 (discussing his military service); see
also Burks v. U.S. Postal Serv., 593 F. App’x 988, 991
(Fed. Cir. 2014) (acknowledging the relevance of an
employee’s military service when analyzing “length of
service” under Douglas); Ordonez v. U.S. Postal Serv., 99
F. App’x 904, 906 (Fed. Cir. 2004) (same); accord Boo v.
Dep’t of Homeland Sec., 122 M.S.P.R. 100, 112 (2014)
(considering employee’s military service in its “length of
service” analysis). The MSPB’s miscalculation affected its
assessment of at least two Douglas factors—Mr. Tar-
taglia’s past disciplinary record and his past work record.
See Tartaglia, 2016 WL 2587964, at ¶ 16 (explaining that
Mr. Tartaglia’s purported four-year tenure “temper[ed]”
mitigating factors such as his “outstanding work record
and lack of prior discipline” (citations omitted)). As a
result, the MSPB abused its discretion because it used
facts unsupported by substantial evidence in its analysis.
See Valdez v. Dep’t of Navy, 369 F. App’x 139, 142 (Fed.
Cir. 2010) (“When an agency has improperly applied the
Douglas factors in selecting a penalty, it has abused its
discretion.”). The MSPB must reassess Mr. Tartaglia’s
removal in light of the correct facts.
Although the MSPB abused its discretion in sustain-
ing the penalty of removal, we decline Mr. Tartaglia’s
invitation to “reverse the decision of the [MSPB], suspend
[him] for thirty (30) days, and order the [VA] to reinstate
[him] with backpay and benefits, including interest and
attorney fees.” Pet’r’s Br. 14 (capitalization omitted). Mr.
Tartaglia’s request would have us fashion the precise
penalty for his misconduct. However, when (as here) the
MSPB sustains less than all charges and the agency has
not indicated that it would impose a lesser penalty, it is
for the MSPB (not this court or the agency) to determine
facility in Hampton, Virginia.” (emphasis added) (citation
omitted)).
8 TARTAGLIA v. DEP’T OF VETERANS AFFAIRS
the penalty. See Hathaway v. Dep’t of Justice, 384 F.3d
1342, 1353 (Fed. Cir. 2004) (“Our precedent in
Lachance . . . requires that in such circumstances the case
return to the [MSPB] rather than the agency.” (citation
omitted)). Accordingly, we vacate the Final Order of the
MSPB and remand the case to the MSPB for determina-
tion under Lachance of some penalty less than removal.
We say “less than removal” because we conclude that, in
the circumstances of this case, removal would be unrea-
sonable and disproportionate to the relatively minor
offense committed (i.e., running a personal errand using a
government-owned vehicle), particularly in light of Mr.
Tartaglia’s total of nineteen years of combined military
and civil service and the fact that he had not previously
been charged with misconduct. See Zingg, 388 F.3d at
843; see also Pet’r’s Br. 8 (stating that “Mr. Tartaglia had
no prior disciplinary record”); Resp’t’s Br. 11 (acknowledg-
ing Mr. Tartaglia’s “lack of prior disciplinary history”).
On remand, the MSPB will have the opportunity to de-
termine the appropriate penalty for Mr. Tartaglia that is
less than removal. See Hathaway, 384 F.3d at 1353; see
also Miguel v. Dep’t of Army, 727 F.2d 1081, 1084 (Fed.
Cir. 1984) (remanding “for . . . determination . . . of an
appropriate lesser penalty” when a single charge against
an employee was sustained but this court found the
penalty of removal to be an abuse of discretion).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Final
Order of the MSPB is vacated. The case is remanded to
the MSPB for further proceedings consistent with this
opinion.
VACATED AND REMANDED
COSTS
Costs to Mr. Tartaglia.