NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

REO DALONTA NELSON,

Petitioner

v.

DEPARTMENT OF TRANSPORTATION,

Respondent

______________________

2018-1880

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-17-0840-I-1.

______________________

Decided: June 11, 2019

______________________

REO DALONTA NELSON, Accokeek, MD, pro se. 

 ERIN MURDOCK-PARK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOSEPH H.

HUNT, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR. 

 ______________________

Before PROST, Chief Judge, LOURIE and DYK, Circuit 

Judges.
2 NELSON v. DEPARTMENT OF TRANSPORTATION

PER CURIAM.

Reo Dalonta Nelson appeals from the final decision of 

the Merit Systems Protection Board (“the Board”) affirming the agency’s decision to suspend him for 60 days and to 

demote him from a GS-13 to a GS-12 position. See Nelson 

v. Dep’t of Transp., No. DC-0752-17-0840-I-1, 2018 WL 

400522 (M.S.P.B. Jan. 12, 2018); S.A. 1–15. For the reasons that follow, we affirm.

BACKGROUND

Nelson was employed in the position of Protective Service Specialist, GS-1801-13, in the Office of Intelligence, 

Security and Emergency Response (S-60) since about November 2009. S.A. 54–55. This position is located in the 

Department of Transportation (“DOT”), Office of the Secretary, and requires a Special Deputation administered by 

the United States Marshal Service. On October 27, 2016, 

Nelson was interviewed in connection with an investigation into his failure to pay for parking in the DOT underground parking garage. The investigation revealed that 

Nelson failed to pay for parking on 455 occasions over a 

three-year period. This resulted in lost parking revenue 

estimated to be between $4,725 and $5,366. Nelson was 

placed on paid administrative leave effective October 27, 

2016, and his Special Deputation was terminated.

On June 29, 2017, Donna O’Berry, the Deputy Director 

of DOT’s Office of Intelligence, Security and Emergency Response, issued a “Notice of Proposed Suspension and Demotion” containing two charges. S.A. 36–43. The first 

charge was 34 specifications of “Conversion of Government 

Property,” which included 455 instances where Nelson 

used the parking garage without paying (the “conversion 

charge”). S.A. 37–40. The second charge was the “Inability 

to Perform the Essential Functions of Your Position” (the 

“demotion charge”). S.A. 40. Because his position of Protective Service Specialist required a Special Deputation, 

which was revoked upon the initiation of the investigation, 
NELSON v. DEPARTMENT OF TRANSPORTATION 3

he could no longer perform the essential functions of his 

position. O’Berry also considered Nelson’s time in Federal 

civilian service and military service, as well as his cooperation in reimbursing the DOT for the fees owed. But based 

on the seriousness of the offense and the fact that he could 

not continue in his current job without a Special Deputation, she determined that a 60-day suspension and a demotion to GS-12 was an appropriate penalty.

Nelson responded to the proposed actions by presenting an oral reply to the Deciding Official, Michael Lowder. 

After reviewing the available information, Lowder concluded in a decision dated August 28, 2017, that the 

charges from O’Berry’s proposal notice were supported by 

a preponderance of the evidence, which warranted the imposition of the 60-day suspension and demotion. For the 

conversion charge, Lowder found it “less than creditable 

that [Nelson] forgot to pay the necessary parking fees on 

450 separate incidents.” S.A. 46. For the demotion charge, 

Lowder found it was supported because Nelson was no 

longer able to perform the essential functions of his position due to his lack of a Special Deputation. Pursuant to 

Douglas, Lowder then considered mitigating factors such 

as Nelson’s “lack of previous discipline, outstanding performance, and cooperation with [Office of Inspector General] 

investigators.” S.A. 47 (citing Douglas v. Veterans Admin., 

5 M.S.P.B. 313, 331–33 (1981)). Lowder acknowledged that 

although Nelson had paid the fees he owed, he had “concerns about whether [Nelson] would have made these payments without the investigation and threat of a 

disciplinary action.” Id. Lowder thus concluded that there 

were sufficient grounds to sustain the 60-day suspension 

and demotion.

Nelson appealed to the Board. The administrative 

judge (“AJ”) determined that the agency had proven by the 

preponderance of the evidence that Nelson’s actions of 

“continuing to use the agency’s parking facilities for almost 

three years with full knowledge that he was required to pay 
4 NELSON v. DEPARTMENT OF TRANSPORTATION

for parking and was failing to do so establishes the necessary intent to sustain the agency’s charge.” S.A. 5. The AJ 

next determined that because Nelson no longer possessed 

a Special Deputation, he was unable to perform the essential functions of his original position and sustained the second charge. Id. The AJ finally concluded that the penalty

was reasonable in light of the serious offense of knowing 

conversion of government property, even considering mitigating factors such as Nelson’s remorse regarding his conduct and full restitution. S.A. 6–7. The AJ’s decision 

became the final decision of the Board on February 16, 

2018 because Nelson chose not to petition for review by the 

full Board.

Nelson appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We must affirm the Board’s decision unless we find it 

to be “(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c). “The court will normally defer to the administrative judgment unless the penalty exceeds the 

range of permissible punishments specified by statute or 

regulation, or unless the penalty is ‘so harsh and unconscionably disproportionate to the offense that it amounts to 

an abuse of discretion.’” Villela v. Dep’t of the Air Force, 

727 F.2d 1574, 1576 (Fed. Cir. 1984) (quoting Power v. 

United States, 531 F.2d 505, 507 (Ct. Cl. 1976)).

Nelson argues that, although he is “not denying the allegations contained in the agency’s charges,” the penalty he 

received for the unpaid parking tickets was “too harsh.” 

Appellant’s Br. 3; see also S.A. 57 (“The Appellant is not 

challenging the merits of the Agency’s charges in his disciplinary action decision dated August 28, 2017.”). He also 
NELSON v. DEPARTMENT OF TRANSPORTATION 5

contends that the Board failed to consider mitigating factors such as his genuine remorse, his lack of a prior disciplinary record, and his length of service. Appellant’s Br. 

4–5. Based on this, Nelson believes he should have received a “lesser form of discipline than a 60-day suspension.” Id. at 5.

The government responds that the Board took into account all the necessary facts when making its decision. Regarding the first charge, the government argues that 

Nelson testified that he knew he was required to pay for 

parking. His “‘actions of continuing to use the agency’s 

parking facilities for almost three years with full 

knowledge that he was required to pay for parking and was 

failing to do so,’ demonstrate[s] the necessary intent to convert agency property for his use.” Appellee’s Br. 12 (quoting S.A. 5). Regarding the second charge, Nelson 

stipulated that the position as Protective Service Specialist 

requires a Special Deputation, which he no longer held. 

See S.A. 5; see also S.A. 57–58. According to the government, the Board properly sustained the second charge because Nelson could no longer perform the duties of the 

Protective Service Specialist without his Special Deputation. The government also argues that the Board appropriately considered all of the record evidence and the relevant 

Douglas factors and correctly concluded that the penalty 

was reasonable.

We agree with the government that the Board properly 

sustained the two charges. Under 18 U.S.C. § 641, it is unlawful for a person to “knowingly convert[] to his use . . . 

any . . . thing of value of the United States or any department or agency thereof . . . .” With respect to the conversion charge, the AJ considered Nelson’s stipulations that 

he knew he was required to pay for parking, which it found 

supported a violation under § 641. With respect to the demotion charge, Nelson again stipulated that the Protective 

Service Specialist position requires a Special Deputation, 
6 NELSON v. DEPARTMENT OF TRANSPORTATION

which he no longer held, and thus the AJ properly sustained this charge.

We also agree with the government that the Board

properly determined that the penalty was reasonable. To 

determine a penalty’s reasonableness, the agency must balance the relevant Douglas factors, although it need not mechanically consider each and every factor. See Webster v. 

Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir. 1990) (citing 

Douglas, 5 M.S.P.B. at 331–33). The AJ considered all of 

the record evidence in making her determination. First, 

the AJ credited Lowder’s testimony and found that Lowder 

considered the applicable Douglas factors including the seriousness of the offense and the fact that Nelson’s “misconduct outweighed his positive work record and the fact that 

he had no prior disciplinary record.” S.A. 6. The AJ next

considered Nelson’s approximately 13 years as a Federal 

civilian employee and prior military service and that he 

made “full restitution to the agency for the amount owed 

although this was done only after [Nelson] became aware 

of the agency’s investigation.” Id. The AJ also reviewed

Nelson’s testimony and determined that while Nelson

seemed “genuinely remorseful about his conduct,” “violation of a criminal statute” was “serious and warrant[s] a 

significant penalty.” S.A. 7. Finally, the AJ noted that it 

is “well settled” that a law enforcement officer is “subject 

to a higher standard of conduct than other Federal employees.” Id. The AJ thus concluded that the penalty was reasonable. S.A. 8.

Based on the AJ’s comprehensive review of all the record evidence, we conclude that the decision is based on substantial evidence, is not arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with the law. We 

thus affirm the Board’s decision.
NELSON v. DEPARTMENT OF TRANSPORTATION 7

CONCLUSION

We have considered Nelson’s remaining arguments but 

find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

COSTS

No costs.