NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

05-3090 

ALBERTO R. ALBERTO, 

 Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

_____________________ 

DECIDED: June 10, 2005 

_____________________ 

Before LOURIE, SCHALL, and BRYSON, Circuit Judges. 

PER CURIAM. 

Alberto R. Alberto seeks review of the final decision of the Merit Systems 

Protection Board sustaining his removal by the Department of Veterans Affairs (“VA”). 

Alberto v. Dep’t of Veterans Affairs, No. DE-0752-03-0468-I-1 (M.S.P.B. Nov. 23, 2004). 

We affirm.

DISCUSSION 

Alberto was removed from his position as a supervisor at a VA health care facility 

after an investigation revealed nineteen misconduct specifications establishing that he 

had repeatedly engaged in a pattern of inappropriate and offensive misconduct towards 

several female employees at the facility. Appealing his removal to the Board, Alberto 
advanced two affirmative defenses: (1) the official who imposed the removal penalty 

had been improperly influenced; and (2) rather than offensive misconduct, the agency 

had effectively charged Alberto with the greater offense of sexual harassment, which it 

failed to prove. 

While sustaining, in whole or in part, fourteen of the nineteen misconduct 

specifications and rejecting Alberto’s affirmative defenses, the Administrative Judge 

(“AJ”) mitigated the penalty to a demotion, reasoning that removal was unreasonably 

harsh given his positive work record, lack of prior discipline, and rehabilitative potential. 

The agency petitioned for review of the AJ’s decision by the full Board, and Alberto 

cross-petitioned, reasserting one of his affirmative defenses. Reversing the mitigation 

ruling and denying Alberto’s cross-petition, the full Board reinstated the penalty of 

removal, holding that it found no error in the agency’s conclusion that Alberto’s repeated 

misconduct warranted removal, and that the AJ had erroneously substituted his 

judgment for that of the agency. This appeal followed. We have jurisdiction under 28 

U.S.C. § 1295(a)(9). 

We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an 

abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial 

evidence. 5 U.S.C. § 7703(c) (2000). We discern none of these grounds for reversal. 

On appeal, Alberto’s arguments amount to an invitation for us to re-weigh the 

evidence and to consider issues that have not been presented to the Board. As an 

appellate tribunal, we can do neither. See Bieber v. Dep’t of the Army, 287 F.3d 1358, 

1364 (Fed. Cir. 2002); see also Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 

(Fed. Cir. 1985). 

05-3090 2
Alberto’s arguments range from asserting that all relevant evidence was not 

included, proper procedures were not followed, a nexus between the charges and the 

efficiency of the service was not established, all relevant factors were not weighed in 

making the decision, the Board unfairly credited the deciding official, and the AJ 

considered circumstances outside of the charges. 

We have considered all these arguments, including the underlying facts, and 

conclude that they do not justify reversal. The Board had substantial evidence for its 

decision and its procedures were not deficient. Moreover, our review of the penalty 

imposed by the agency is highly deferential. See Bieber, 287 F.3d at 1365. 

Accordingly, we must affirm. 

05-3090 3