NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3328

SCOTT A. CURRY, Petitioner,

v.
DEPARTMENT OF AGRICULTURE, Respondent.

Scott A. Curry , of Troy, Montana, pro se. Sean B. McNamara , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Todd M. Hughes , Assistant Director. Of counsel on the brief was Jennifer T. Newbold , Office of the General Counsel, United St ates Department of Agriculture, of Missoula, Montana. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3328 SCOTT A. CURRY, Petitioner,

v. DEPARTMENT OF AGRICULTURE, Respondent.

__________________ _________ DECIDED: February 9, 2007

__________________ _________ Before LOURIE, RADER, and BRYSON, Circuit Judges

. PER CURIAM. Scott A. Curry petitions this court for re view of the decision of the Merit Systems Protection Board (the Boar d) affirming the agency’s decision of removal. See Scott A. Curry v. Dep’t of Agric. , DE-0752-05-0294-I-1 (M.S.P.B. May 12, 2006) ( Final Order ), denying petition for review of Scott A. Curry v. Dep’t of Agric. , DE-0752-05-0294-I-1 (M.S.P.B. Dec. 14, 2005) ( Initial Decision ). For reasons set forth in this opinion, this
court affirms

. I The United States Department of Agri culture (USDA) removed Mr. Curry for failure to cooperate in an official investigation. Mr. Curry appealed his removal to the Board. Initial Decision , slip op. at 1. The adminis trative judge determined that theUSDA was justified in removing Mr. Cu rry because Mr. Curry had violated USDA polic ies. Id

. at 13. The administrative judge dete rmined that because the investigation was administrative in nature and not criminal, and because of the grant of use i mmunity, Mr. Curry’s Fifth Amendment rights were not vi olated by a requirement for him to attend an intervie w with the USDA. Id. at 9-11. The administr ative judge upheld Mr. Curry’s removal. Id. at 12. The full Boar d denied M r . Curry’s petition for review. Final Order

. II This court’s scope of review of the Board’ s final decis ion is narrow. This court affirms a Board decision unless it is (1)arbit rary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2)obtained without procedures required by law, rule, or regulation having been followed; or (3)unsupported by s ubstantial evidenc e. 5 U.S.C § 7703(c); Hayes v. Dep’t of the N a vy , 727 F.2d 1535, 1537 (Fed Cir. 1984). Based on this standard of review, this court wil l not overturn an agency decision if it is supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. U. S. Postal Serv. , 647 F.2d 1093, 1096 (Ct. Cl. 1981). Regarding penalties, “[T]he choice of penalty is committed to the sound discretion of the employing agenc y and wil l not be overturned unless the agency’s choice of penalty is wholly unwar r anted in light of all the relevant factors.” Guise v. Dep’t of Justice , 330 F.3d 1376, 1382 (Fed. Cir. 2003). In order to prove that Mr. Curry was properly removed from federal service, the USDA must show that the conduct that removal was based on occurred, that the conduct affected the efficiency of the se rvice, and that the imposed penalty was reasonable. James v. Dale , 355 F.3d 1375, 1378 (Fed. Cir. 2004).

2006-3328 2This court finds no errors in the Boar d’s determination that the agency properly justified Mr. Curry’s removal. The r equest for an interview with Mr. Curry was determined to be a legitimate request. Initial Decisio n , slip op. at 8. Having found a valid reason for the request for an intervie w, the Board then cons idered whether Mr. Curry properly invoked his Fifth Amendment rights. Id. The USDA informed Mr. Curry that he would be removed if he did not partici pate in the interview and that his answers could not be used against him in a criminal case. He was further granted use immunity from the Department of Just ice (DOJ). Contrary to Mr. Curry’s arguments on appeal, both the immunity he received through the Kalkin es warnings, see Initial Decision , slip op. at 3, and the use immunity provided to him by the DOJ, were sufficient to protect him. Further as the gove rnment points out on appeal, Mr. Curry never appeared for his interview and so any questions c oncerning crim es of vi olence (an area not covered by his use immunity) are not applicable in this situation. See Initial Decisio n , slip op. at 9- 10. Thus, i n such a situation, the governm ent possesses the power to remove him fro m his position because he subsequently did not participate in the interview. See Garrity v. New Jerse y , 385 U.S. 483, 500 (1967). Next, Mr. C u rry’s failure to appear for an interview affected the efficiency of the USDA sinc e Mr. Curry’s involv ement was of pr incipal importance to its investigation. See Weston v. Dep’t of Hous. & Urban Dev. , 724 F.2d 943, 949 (Fed. Cir. 1983). The Board properly found that Mr. Curry had extensive involvement in the contracting issue that was being investigated. Initial Decisio n , slip op. at 8. Finally, the Board proper ly determined that the penalty of removal w a s appropriate. As stated above, this court c annot overturn a penalty unless this court

2006-3328 3determines it is wholly unwarranted in light of all the relev ant factors. Guise , 330 F.3d at 1382. These factors are set out in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). Here, the B oard properly consider ed t hese factors, including the fact that Mr. Curry had 15 years of exemplar y service prior to this incident. Initial Decis i on , slip op. at 12. However, the Board noted that “t he appella nt acted intentionally and with fu ll knowledge that he could be re moved when he failed to attend the December 16th interview.” Initial Decis i o n , slip op. at 13. Accordingly, this court affirms the Board’s decision. No costs.

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