United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JEFFREY B. NORRIS, 

Petitioner, 

v. 

SECURITIES AND EXCHANGE COMMISSION, 

Respondent. 

__________________________ 

2011-3129 

__________________________ 

Petition for review of an arbitrator’s decision in case 

no. SEC-AR-09-005 by Daniel M. Winograd. 

___________________________ 

Decided: April 10, 2012 

___________________________ 

MICHAEL J. KATOR, Kator, Parks & Weiser, P.L.L.C., 

of Washington, DC, argued for petitioner. With him on 

the brief was ADAM J. CASNER, of Austin, Texas. 

TARA K. HOGAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondent. With 

her on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and TODD M.

HUGHES, Deputy Director. Of counsel on the brief was 

JUANITA C. HERNANDEZ, Senior Counsel, Securities & 

Exchange Commission, of Washington, DC. 
NORRIS v. SEC 2

__________________________ 

Before DYK, MOORE, and O’MALLEY, Circuit Judges. 

DYK, Circuit Judge. 

Jeffrey B. Norris (“Norris”) petitions for review of an 

arbitrator’s decision affirming his removal from his position as a Trial Attorney with the Securities and Exchange 

Commission (“SEC”). U.S. Sec. & Exch. Comm’n v. Nat’l 

Treasury Emps. Union Chapter 293, No. SEC-AR-09-005 

(Apr. 19, 2011) (Winograd, Arb.) (“Arbitration Decision”). 

Because we hold that the arbitrator erroneously failed to 

consider new evidence bearing upon the reasonableness of 

Norris’s removal, we vacate and remand. 

BACKGROUND

Norris served as a Trial Attorney with the SEC from 

February 23, 1992, until he was removed on August 28, 

2009. Before the events leading to his removal, discipline 

was initiated against Norris for exercising poor judgment 

and misuse of government email on two separate occasions. In 2007, Norris was suspended from service without pay for one day for exercising poor judgment in 

emailing an attorney who represented a witness in an 

ongoing SEC case, and expressing his opinion about the 

merits of the case. Thereafter, from March to May 2007, 

Norris exchanged a series of antagonistic emails from his 

SEC email account, and in which he identified himself as 

SEC trial counsel, with businessman Mark Cuban, owner 

of the Dallas Mavericks professional basketball team. 

Based on this exchange, Norris was suspended without 

pay for fourteen calendar days due to his misuse of government email. 

The removal here was based on three additional 

emails sent in 2008. On September 11, 2008, Norris sent 
3 NORRIS v. SEC

an email to the Washington Post from his SEC email 

account in which he identified himself as Senior Trial 

Counsel and expressed certain political views. On October 19, 2008, Norris sent an email to two supervisors and 

three members of the support staff in which he demeaned 

the support staff and implied that they were incompetent 

at performing their job duties. Finally, on October 23, 

2008, Norris emailed a confidential suspicious activity 

report (“SAR”) to an appointed receiver and his counsel in 

violation of SEC policies.1

On May 22, 2009, the SEC sent Norris a notice of proposed removal which proposed to remove him based on 

the three emails sent in 2008, and recounted the prior 

emails which had led to the previous disciplinary actions 

against him. Norris responded, urging that his actions in 

connection with the 2008 emails were influenced by 

several personal circumstances, including his wife’s 

becoming fully disabled, his daughter’s suffering from 

Asperger’s Disorder, and Norris’s adult Attention Deficit 

Hyperactivity Disorder (“AD/HD”). On August 19, 2009, 

the deciding official, Rose Romero (“Romero”), informed 

Norris that she had decided to remove him effective 

August 28, 2009, for misuse of government equipment by 

sending unauthorized or inappropriate emails. In the 

decision, Romero stated that “because of [Norris’s] continued inappropriate and/or unauthorized emails [she had] 

lost confidence that [he could] effectively perform [his] 

assigned duties.” J.A. 118. Romero also noted that she 

 1 A SAR is a report filed by a financial institution 

with a federal law enforcement agency in which the 

institution discloses known or suspected violations of 

federal law or suspicious monetary transactions. Because 

a SAR may result in a criminal investigation, SARs and 

any information that would reveal the existence of a SAR 

are required to be kept strictly confidential. See 12 C.F.R. 

§ 21.11. 
NORRIS v. SEC 4

had considered Norris’s explanation that his behavior 

stemmed from his AD/HD and the effect of the medical 

conditions of his wife and daughter, but nevertheless 

concluded that Norris did “not have the potential for 

rehabilitation because prior disciplinary actions have not 

prevented [his] impulsive and improper e-mails.” Id. 

The union submitted Norris’s removal to arbitration 

pursuant to the terms of the collective bargaining agreement with the SEC. A hearing was held before an arbitrator on November 18-19, 2010. There was no dispute 

that Norris had engaged in the behavior that led to his 

removal or that his actions constituted improper conduct. 

The focus was primarily on whether removal was a reasonable penalty. During the hearing, the arbitrator 

received testimony from six witnesses, including Romero 

and Norris. Although the incident was not mentioned in 

the notice of proposed removal, Romero testified in response to questioning from the agency’s counsel that 

sometime before the termination proceeding, she had 

learned that Norris had a confrontation with agency 

commissioners in 2007 and that he was therefore barred 

from presenting cases to commissioners in the future.2

Romero also testified that Norris’s conduct in connection 

with this incident and the subsequent presentations bar 

had “a direct impact on how that attorney . . . is able to 

perform his duties.” J.A. 139. In mitigation of the 

charges against him, Norris presented evidence that his 

personal circumstances had improved in early 2009, so 

that the improper conduct was unlikely to recur in the 

future. Norris testified that his daughter was placed in a 

special program to cater to her needs due to her Asper-

 2 During the hearing, Norris testified that he had 

never been barred from presenting cases to the commissioners and did not recall the confrontation that was 

alleged to have led to the bar. 
5 NORRIS v. SEC

ger’s Disorder and had begun taking a new medication 

that caused her to show significant improvement, and 

that his wife’s condition had also improved. Norris’s 

psychiatrist testified that Norris began taking medication 

for his AD/HD in June of 2009, and also had begun attending adult AD/HD support groups. Norris’s psychiatrist expressed his opinion that in the future, Norris was 

unlikely to send emails such as those that had formed the 

basis of his removal, due in part to his treatment and also 

to the fact that his primary “stressors” (the medical 

conditions of his wife and daughter) had been alleviated. 

On April 19, 2011, the arbitrator issued a decision affirming Norris’s removal and concluding that “Romero did 

not abuse her discretion as a manager in making the 

decision to remove [Norris] from the service.” Arbitration 

Decision, slip op. at 59. In reaching this conclusion, the 

arbitrator considered each of the twelve “Douglas factors” 

to assess whether Norris’s removal was an appropriate 

penalty. See Douglas v. Veterans Admin., 5 M.S.P.B. 313, 

331-32 (1981) (setting forth the factors relevant in determining the appropriateness of a penalty). In considering 

“the effect of the offense upon the employee’s ability to 

perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform 

assigned duties” (Douglas factor 5), id. at 332, the arbitrator concluded that this factor was “neutral,” Arbitration 

Decision, slip op. at 52. The arbitrator relied on Romero’s 

testimony that Norris’s aggressive behavior had caused 

him to be barred from presenting cases to commissioners 

and that she had lost confidence in Norris’s ability to 

maintain confidential information or good working relationships with other staff members. Id. 

In assessing the “potential for the employee’s rehabilitation” (Douglas factor 10), Douglas, 5 M.S.P.B. at 332, 

the arbitrator noted that this factor was one of “the most 
NORRIS v. SEC 6

difficult considerations,” Arbitration Decision, slip op. at 

55. The arbitrator stated that “[i]f sympathy were the 

sole deciding factor in this case, the arbitrator would 

conclude that grievant should be reinstated to his former 

position.” Id. at 57. The arbitrator also recounted that 

Norris’s psychiatrist had testified that Norris’s course of 

treatment had “improved [Norris’s] impulse control” and 

would “prevent[] further transgressions,” and noted that 

the medical conditions of Norris’s wife and daughter had 

improved, alleviating much of the stress from which he 

had previously suffered. Id. at 56-57. Nonetheless, the 

arbitrator found that “[t]he issue before the arbitrator is . 

. . whether Romero’s decision, based upon the facts and 

circumstances known to her at the time, was within ‘tolerable limits of reasonableness,’” and thus declined to 

consider these post-removal events in rendering a decision. Id. at 57-58 & n.17 (emphasis added). 

Norris timely appealed to this court. We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703. 

DISCUSSION

Under 5 U.S.C. § 7121(f), we review a decision by an 

arbitrator “in the same manner and under the same 

conditions as if the matter had been decided by the [Merit 

Systems Protection] Board”; and our review of Merit 

Systems Protection Board (“Board”) decisions is limited. 

We may only set aside agency actions, findings, or conclusions that we find 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); see 

also Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 

(Fed. Cir. 2011). We review questions of law de novo. 
7 NORRIS v. SEC

Chambers v. Dep’t of the Interior, 602 F.3d 1370, 1375 

(Fed. Cir. 2010). 

I 

Relying on this court’s recent decision in Ward v. U.S. 

Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), Norris first 

argues that both Romero and the arbitrator improperly 

considered ex parte information that Norris had engaged 

in a confrontation that led to his being barred from presenting cases before the commissioners. This alleged 

confrontation and resulting bar had not been included in 

Norris’s notice of proposed removal. 

The pertinent regulation provides that “[i]n arriving 

at its decision, the agency will consider only the reasons 

specified in the notice of proposed action and any answer 

of the employee or his or her representative, or both, 

made to a designated official . . . .” 5 C.F.R. 

§ 752.404(g)(1). In Ward, we held that “[e]x parte communications that introduce ‘new and material information,’ whether material to the merits of the underlying 

charge or material to the penalty to be imposed, violate 

due process,” and explained that consideration of ex parte 

communications is a procedural error in violation of 

section 752.404. 634 F.3d at 1280-81. Ward involved a 

postal worker who had been removed from the federal 

service. Ward’s notice of proposed removal informed him 

that the basis for his removal was a single, isolated incident in which Ward had engaged in improper conduct 

towards his supervisor. Id. at 1276. Ward appealed his 

removal to the Board. At the hearing before the Board, 

the deciding official testified that he had considered not 

only the incident that was the subject of the notice of 

proposed removal, but also prior incidents that had been 

relayed to him by other supervisors in which Ward had 

acted in a similarly inappropriate manner. Id. In par-
NORRIS v. SEC 8

ticular, the deciding official specifically “admitted that 

Ward’s ‘recurring pattern of behavior’ affected his analysis of two Douglas factors, lowering the Deciding Official’s 

confidence in Ward’s ability to satisfactorily perform his 

duties and convincing the Deciding Official that Ward 

showed no potential for rehabilitation.” Id. We held that 

“[a]t worst, the Deciding Official’s ex parte communications violated Ward’s due process rights” and “[a]t a 

minimum, the Deciding Official’s consideration of alleged 

past misconduct that was not included in the Notice of 

Proposed Removal violated Agency procedure.” Id. at 

1278. Thus, we remanded Ward’s case to the Board to 

“analyze whether the Deciding Official’s ex parte communications violated Ward’s due process rights by introducing new and material information”; and if not, “whether 

the Agency’s procedural error, considering Ward’s alleged 

prior misconduct that was not included in his Notice of 

Proposed Removal, was harmful error.” Id. at 1282-83; 

see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 

1999) (“The introduction of new and material information 

by means of ex parte communications to the deciding 

official undermines the public employee’s constitutional 

due process guarantee of notice (both of the charges and of 

the employer’s evidence) and the opportunity to respond.”). 

Norris argues that his case is analogous to Ward because Romero, the deciding official, admitted during the 

arbitration hearing that she had been aware of prior 

conduct (Norris’s alleged confrontation with commissioners and resulting bar) that had not been included in the 

notice of proposed removal and that this prior conduct 

contributed to her conclusion that she had lost confidence 

in Norris’s ability to perform his assigned duties (Douglas

factor 5). 
9 NORRIS v. SEC

As Norris’s counsel conceded at oral argument, a deciding official’s mere knowledge of prior misconduct by the 

employee obtained before the commencement of disciplinary proceedings does not constitute an improper ex parte 

communication. See Oral Argument at 1:55-2:33, Norris 

v. Sec. & Exch. Comm’n, No. 2011-3129 (Fed. Cir. Feb. 10, 

2012), available at http://www.cafc.uscourts.gov/oralargument-recordings/2011-3129/all. There is nothing 

inherently wrong with a deciding official’s having background knowledge of an employee’s prior work history or 

performance record. Nothing in the regulations limits the 

deciding official to being a neutral arbiter or requires that 

the deciding official be unfamiliar with the individual, the 

facts of the case, or the employee’s prior conduct. A 

deciding official’s knowledge of an employee’s background 

only raises due process or procedural concerns where that 

knowledge is a basis for the deciding official’s determinations on either the merits of the underlying charge or the 

penalty to be imposed. See Ward, 634 F.3d at 1280. 

Here, viewing the record as a whole, it is clear that 

Romero testified only to her knowledge of the prior incident. She did not, as Norris contends, testify that this 

incident played any role in her decision to impose removal. She simply testified that this conduct has an 

impact on how an attorney is able to perform his duties.3 

 3 During the arbitration hearing, Romero was 

called as a rebuttal witness for the agency and testified as 

follows regarding Norris’s alleged confrontation with 

commissioners in 2007: 

Q: And his conduct would be described as what? 

A: Confrontational to the commissioners. 

Q: Okay. Now, would that bar and – and that 

conduct be something that would be something that you would want to see in a trial attorney? 
NORRIS v. SEC 10

She also testified that, in deciding to remove Norris, she 

had not considered information that had not been included in the notice of proposed removal. Thus, unlike 

Ward where the deciding official explicitly admitted to 

considering information not included in the notice of 

proposed removal in weighing two of the Douglas factors, 

here Romero never indicated that her knowledge of Norris’s prior misconduct had influenced her consideration of 

the Douglas factors or weighed on her ultimate decision to 

remove Norris. We conclude that there is no evidence 

that Romero improperly considered ex parte information 

in determining the penalty to be imposed. 

Norris also contends that the arbitrator erred in relying on the ex parte information concerning the alleged 

confrontation with commissioners introduced through 

Romero’s testimony in sustaining Norris’s removal. In 

weighing the effect of the offense on the employee’s ability 

to perform his job and on his supervisors’ confidence in 

the employee’s abilities (Douglas factor 5), the arbitrator 

relied on the fact that “[Norris’s] aggressive approach and 

attitude . . . had resulted in an order by the Commission 

that [Norris] would not be allowed to orally present case 

summaries to the Commission.” Arbitration Decision, slip 

op. at 52. However, the arbitrator also considered other 

evidence in weighing Douglas factor 5. In addition to the 

allegation that Norris had been barred from presenting 

cases to the commissioners, the arbitrator also relied on 

testimony by Romero and another supervisor that they 

had lost confidence in Norris’s ability to maintain confidential information and to have good working relation-

 

A: Well, I think it has a direct impact on how 

that attorney performs his – is able to perform 

his duties. 

J.A. 139. 
11 NORRIS v. SEC

ships with other members of the workforce based upon 

conduct that had been included in the notice of proposed 

removal. The arbitrator then weighed this adverse evidence against Romero’s favorable testimony that Norris 

had continued to be an effective litigator throughout his 

term of employment, to determine that Douglas factor 5 

was a “neutral” factor in assessing an appropriate penalty. 

It is far from clear that the arbitrator’s consideration 

of Norris’s 2007 conduct played a significant role in the 

arbitrator’s decision to sustain Norris’s removal; the 

arbitrator’s consideration of the conduct, while improper, 

may well have been harmless error. In light of the remand based upon the procedural error discussed below, 

we need not decide whether the arbitrator’s error was 

harmless error. However, on the remand the arbitrator 

should not consider information not included in the notice 

of proposed removal in assessing whether the removal 

was reasonable. 

II 

Norris next argues that the arbitrator erroneously 

failed to consider post-removal evidence presented at the 

hearing regarding Norris’s AD/HD treatment, the improved medical conditions of his wife and daughter, and 

Norris’s psychiatrist’s conclusion that the improper conduct was unlikely to be repeated. In response, the government contends that allowing the arbitrator to consider 

this post-removal evidence would require the arbitrator to 

substitute his judgment for that of the agency. We address whether the arbitrator was obligated to consider 

new, post-removal evidence in mitigation of the penalty 

that was not before the deciding official. 

Arbitrators, like the Board, must review de novo the 

merits of an agency’s decision to take adverse action 
NORRIS v. SEC 12

against an employee; i.e., the Board determines de novo

the underlying facts of the case such as whether the 

employee engaged in the alleged misconduct and whether 

the agency exceeded its authority in determining that the 

employee’s misconduct would adversely affect the efficiency of the service. Brook v. Corrado, 999 F.2d 523, 528 

(Fed. Cir. 1993); see Doe v. Dep’t of Justice, 565 F.3d 1375, 

1382 (Fed. Cir. 2009); Jackson v. Veterans Admin., 768 

F.2d 1325, 1329 (Fed. Cir. 1985). The requirement of de 

novo review stems from the mandate that “the decision of 

the agency shall be sustained . . . only if the agency’s 

decision . . . is supported by a preponderance of the evidence.” 5 U.S.C. § 7701(c)(1); see also Jackson, 768 F.2d 

at 1329. Thus in Brook, we held that because the proceeding on the merits is de novo, “all evidence obtained up 

to the time of hearing is admissible.” 999 F.2d at 528. 

Accordingly, we “must review the agency action based on 

the record made to the [Board] and the [Board] findings, 

rather than review the agency action solely on the basis of 

the agency’s record.” Jackson, 768 F.2d at 1329 n.4. 

The penalty question here involves a different standard of review from the merits determination; i.e., review 

is not de novo. The “determination of an appropriate 

penalty is a matter committed primarily to the sound 

discretion of the employing agency.” Brook, 999 F.2d at 

528 (quoting Beard v. Gen. Servs. Admin., 801 F.2d 1318, 

1322 (Fed. Cir. 1986)); see also Lachance v. Devall, 178 

F.3d 1246, 1251-52 (Fed. Cir. 1999). “The Board’s role in 

[assessing the penalty] is not to insist that the balance be 

struck precisely where the Board would choose to strike it 

if the Board were in the agency’s shoes in the first instance.” Douglas, 5 M.S.P.B. at 332. Rather, the Board’s 

review “is essentially to assure that the agency did conscientiously consider the relevant factors and did strike a 
13 NORRIS v. SEC

responsible balance within tolerable limits of reasonableness.” Id.; see also Lachance, 178 F.3d at 1256-57. 

Since the Board’s review is designed to determine 

whether the agency’s action was reasonable, it can be 

argued that such a determination limits the Board’s 

review to the evidence before the agency at the time of its 

decision. After all, a court’s review of agency action to 

determine whether it was arbitrary and capricious is 

typically limited to review of the agency record.4 But we 

think that the Board’s function is different from that of a 

reviewing court. Under 5 U.S.C. § 7701(c)(1), Congress 

required that the Board develop a new record. The Board 

must review the agency’s action based on the new record. 

§ 7701(c)(1). In enacting this provision, Congress clearly 

contemplated that the new record would extend to all 

aspects of the case. “The Committee amended 

[§§ 7701(b)-(c)] to make it absolutely clear that an employee would receive a full evidentiary hearing in any case 

where there is a dispute as to any genuine and material 

issue of fact . . . .” S. Rep. No. 95-969, at 53-54 (1978), 

reprinted in 1978 U.S.C.C.A.N. 2723, 2775-76 (emphasis 

added); see also H.R. Rep. No. 95-1717, at 137 (1978) 

(Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 2860, 2871 

 4 See, e.g., Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 555 (1978) 

(“[T]he role of a court in reviewing the sufficiency of an 

agency’s consideration of environmental factors is a 

limited one, limited both by the time at which the decision 

was made and by the statute mandating review.” (emphasis added)); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1316 (Fed. Cir. 2004) (“[I]f litigants could 

demand rehearing as a matter of law because of new 

circumstances, new trends or new facts, ‘there would be 

little hope that the administrative process could ever be 

consummated in an order that would not be subject to 

reopening.’” (quoting Vt. Yankee, 435 U.S. at 554-55)). 
NORRIS v. SEC 14

(“[T]he employee is entitled to a hearing on appeal to the 

Merit Systems Protection Board.”). Given the Board’s 

duty to conduct an independent assessment of the Douglas factors to determine the reasonableness of the penalty, 

see Douglas, 5 M.S.P.B. at 332-33, we see no reason to 

distinguish between requiring the Board to consider new 

evidence relating to the agency’s decision on the merits of 

the underlying misconduct and requiring the Board to 

consider new evidence regarding the reasonableness of 

the penalty imposed. Thus, we think new evidence, even 

on the question of penalty, should be considered by the 

Board (subject to the employee’s right to notice of the 

basis for the removal described above). 

The Board has consistently recognized its obligation 

to consider new evidence affecting the penalty determination in weighing the Douglas factors.5 And in Malloy v. 

 5 See, e.g., Sherlock v. Gen. Servs. Admin., 103 

M.S.P.R. 352, 355, 357 (2006) (acknowledging that “the 

Board may consider an appellant's medical condition in 

determining the appropriate penalty” even where the 

evidence of the condition was presented for the first time 

before the Board); Singletary v. Dep’t of the Air Force, 94 

M.S.P.R. 553, 560 (2003) (“Although the Board has found 

that an appellant’s failure to bring a mitigating factor to 

an agency’s attention does not prohibit an AJ from considering that factor, the Board has noted that such failure 

merely affects the weight of the factor.”); Frye v. Dep’t of 

the Army, 63 M.S.P.R. 242, 246 (1994) (according “significant probative weight” to a medical report received postremoval where the report reflected treatment over a 

substantial period of time); Tactay v. Dep’t of the Navy, 30 

M.S.P.R. 363, 367-68 (1986) (considering a removed 

employee’s successful post-removal completion of a rehabilitation program and determining that the employee’s 

removal “exceed[ed] the bounds of reasonableness”); 

Bryant v. Gen. Servs. Admin., 23 M.S.P.R. 425, 427 (1984) 

(“The failure to bring mitigating factors to the agency's 

attention merely affects the weight attached to them.”); 
15 NORRIS v. SEC

United States Postal Service, 578 F.3d 1351 (Fed. Cir. 

2009), we impliedly decided this very question. Malloy

involved a United States Postal Service (“USPS”) worker 

who had been removed from service due to a series of 

inappropriate exchanges with her supervisor. Id. at 1354. 

The USPS issued Malloy a notice of proposed removal on 

August 29, 2006; and she was ultimately removed effective October 6, 2006. Id. Malloy appealed her removal to 

the Board. At the hearing before the Board, Malloy 

submitted extensive medical evidence, including, inter 

alia, a post-removal report dated December 5, 2006, from 

Malloy’s physician who had treated her for severe recurrent major depression from September 26, 2006, to December 16, 2006. Id. at 1355. The report specifically 

linked Malloy’s inappropriate behavior to her medical 

condition. Id. In sustaining Malloy’s removal, the Board 

failed to explicitly address the medical evidence submitted by Malloy, though it noted that it had “reviewed her 

submissions.” Id. at 1356. We held that “when mental 

impairment or illness is reasonably substantiated, and is 

shown to be related to the ground of removal, this must be 

taken into account when taking an adverse action against 

the employee.” Id. Thus, although the Board stated that 

all of the relevant Douglas factors had been considered, 

because the Board failed to explicitly analyze Malloy’s 

medical evidence, we remanded the case for consideration 

of Malloy’s evidence (including the post-removal report) 

and “reapplication of the Douglas factors in light of this 

evidence.” Id. at 1357. 

 

Hall v. Dep’t of the Air Force, 8 M.S.P.R. 347, 355 (1981) 

(“[W]e are not limited to the record before the agency and 

will consider all relevant factors of record.”), aff’d in part, 

rev’d in part on other grounds, 698 F.2d 1230 (9th Cir. 

1983). 
NORRIS v. SEC 16

Under Malloy, the Board is tasked with independently assessing the relevant Douglas factors to determine 

whether the penalty imposed was reasonable. See also

Lachance, 178 F.3d at 1257 (“That the Board always 

should have independent balancing authority seems 

manifest in view of the Reform Act’s purpose in creating 

the Board to determin[e] whether [the civil service] system is free from abuse.” (alterations in original) (internal 

quotation marks omitted)). Thus, we hold that where new 

evidence in mitigation of the penalty imposed is presented 

to the Board (or the arbitrator), the evidence must be 

considered in determining whether the agency’s imposed 

penalty was reasonable. 

In this case, the arbitrator erred in holding that “postremoval . . . good conduct is not relevant to the issue 

before the arbitrator.” Arbitration Decision, slip op. at 57 

n.17. In assessing the reasonableness of the penalty 

imposed, the arbitrator was required to consider postremoval evidence that was brought to his attention. On 

remand, the arbitrator should consider the post-removal 

evidence submitted by Norris in evaluating the relevant 

Douglas factors. We express no opinion as to the weight 

to be given such mitigating evidence. 

On remand, we leave to the arbitrator to determine 

whether, in light of all the evidence, the penalty of removal “did strike a responsible balance within tolerable 

limits of reasonableness.” Douglas, 5 M.S.P.B. at 333. 

CONCLUSION

For the foregoing reasons, the arbitrator’s decision affirming Norris’s removal is vacated and the matter is 

remanded for further proceedings consistent with this 

opinion. 

VACATED and REMANDED. 
17 NORRIS v. SEC

COSTS

Costs to appellant.