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 represented 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 relevant here. Mr. Tartaglia served as a Supervisory Security 

Officer and the Chief of Police at the VA’s Veterans Administration 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 Government 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 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 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 instructing a subordinate to drive him in a governmentowned 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 reasonably 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. Tartaglia’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 “temper[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 misconduct 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 constitutes “an abuse of discretion.” 5 U.S.C. § 7703(c)(1) 

(2012). The MSPB abuses its discretion when “the decision 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 discretion 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. Tartaglia’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 agency has not indicated either in its final decision or 

during proceedings before the [MSPB] that it desires 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. Tartaglia’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 particular factor be given special treatment[] or that all factors 

be considered in every case without regard to their relevancy”). 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 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 (explaining 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 sustaining 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 establishes that the MSPB miscalculated 

the length of Mr. Tartaglia’s federal service. The MSPB 

found that Mr. Tartaglia served the VA for “approximately [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 military 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. Tartaglia’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 sustaining 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 determination 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 unreasonable 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 (acknowledging Mr. Tartaglia’s “lack of prior disciplinary history”). 

On remand, the MSPB will have the opportunity to determine 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.