# United States **Court of Appeals**  **for the Federal Circuit**

______________________ MARK J. TARTAGLIA, Petitioner

v.

DEPARTMENT OF VETERA NS 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

______________________

N EIL C URTIS B ONNEY , Bonney, Allenberg & O’Reilly, PC, Virginia Be ach, VA, argued for petitioner.

E RIC J OHN S INGLEY , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represen ted by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R

. , R EGINALD T. B LADES

.

______________________

Before N EWMAN , S CHALL , and W ALLACH , Circuit Judges.

W ALLACH , Circuit Judge

.TARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 2

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 remo val, we vacate and remand.

B ACKGROUND The parties do not dispute the background facts rel evant here. Mr. Tartaglia served as a S upervisory S ecurity O fficer and the Chief of Police at the VA’s Veterans A dministration 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 Gover nment 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. 10 7– 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 response 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 AFFAIR S 3

30, 2015) ( J. A. 80

– 94 )

. T he 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 i nstructing 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 charge s for removal

, she concluded that the VA reason ably removed Mr. Tartaglia b ased 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. Ta rtaglia’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 sole ly on Specification 5 to Charge 1, id. at ¶¶ 14

– 16. In support of its conclusion, t he MSPB found that (1) removal fell within the VA’s Table of P enalties 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 “te mper[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 mi sconduct to [VA] investigators.” Id. at ¶ 16 (citations omitte d). 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 i d.TARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 4

The instant appea l followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION

I. Standard of Review

We affirm an MSPB decision unless, inter alia, it co nstitutes “an abuse of discretion.” 5 U.S.C. § 7703(c)(1) (2012). The MSPB abuses its discre tion when “ the dec ision 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

an d citation omitted ).

II. The MSPB Abused Its Discretion in Uph o ld ing Mr. Tartaglia’s Removal
Mr. Tartaglia argues that the MSPB abused its di scretion 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. Ta rtaglia’s specific arguments in turn.
A. Legal Framework

A fter 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 t han all of the agency’s charges, the [MSPB] may mitigate to the maximum reasonable penalty so long as the age ncy has not indicated either in its final decision or during proceedings before the [MSPB] that it d esires that a lesser penalty be imposed on fewe r charges.TARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 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 Cha r ge 1, Specification 5

, alone. In ruling on Mr. Ta rtaglia’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 impo sed upon Mr. Tartaglia.

In Douglas v. Veterans Admin istration , the MSPB set forth twelve factors to be considered in de termining 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, 84 4 (Fed. Cir. 2004) (explaining that Douglas “requires” the employing agency to consider the twelve factors but “ does not mandate that any parti cular factor be given special treatment [] or that all factors be considered in every case without reg ard to their rel evancy ”)

. 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 considered 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 o f 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.3 d at 84 3 (emphasis added) (internal quotation marks and citation omitted).TARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 6

B. The MSPB’s Final Order Rested Upon Unsupported Fact ual 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 (explai ning that “the weight to be given the relevant [ Douglas ] factors lies primarily within the agency’s broad discretion to determine the appropriate penal ty for a particular case”).
Those points n otwithstanding

, we do agree with Mr. Tartaglia that the MSPB abuse d its discretion in sustai ning the VA’s imposition of the penalty of removal

. Specifically, 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 e stablishes that the MSPB miscalculated the length of Mr. Tartaglia’s federal service. The MSPB found that Mr. Tartaglia served the VA for “approximat ely [four] years,” Tartaglia , 2016 WL 2587964, at ¶ 16 , but the record shows that Mr. Tartaglia actually w orked for the VA for fourteen years and that he served in the mil itary for another five years, 3 s ee 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 VATARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 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 affect ed its assessment of at least two Douglas factors

— Mr. Ta rtaglia’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 us ed 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 MSP B must reassess Mr. Tartaglia’s removal in light of the correct facts

. Although the MSPB abused i ts discretion in sustai ning 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 th is court or th e agency ) to determine

facility in Hampton , Virginia.” (emphasis added) (citation

o mitted)).TARTAGLIA v. DEP ’ T OF VETERANS AFFAIR S 8

the penalty. See Hathaway v. Dep’t of Justice , 384 F.3d 1342, 135 3 (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 F inal O rder of the MSPB and remand the case to the MSPB for det ermin ation 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 unre asonable and disproportionate to the relatively minor offense committed (i.e., runnin g a personal errand using a government- owned vehicle)

, particularly in light of M r. 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 84 3 ; see also Pet’r’s Br. 8 ( stating that “Mr. Tartaglia had no prior disciplinary record”); Resp’t’s Br. 11 (acknowled ging Mr. Tartaglia’s “lack of prior disciplinary history”)

. On remand, the MSPB will have the opportunity to d etermine 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, 108 4 (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 ).

C ONCLUSION 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

C OSTS Costs to Mr. Tartaglia.