Note: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2006-3312 

NORBERT J. CEBULA, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Norbert J. Cebula, of Hull, Massachusetts, pro se. 

 

David F. D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, 

and Jeanne E. Davidson, Deputy Director. 

Appealed From: United States Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 2006-3312 

NORBERT J. CEBULA, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

__________________________ 

DECIDED: March 9, 2007 

__________________________ 

Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and ROBINSON,* Chief Judge. 

PER CURIAM. 

Norbert J. Cebula petitions for review of the final decision of the Merit Systems 

Protection Board ("MSPB"), Docket No. PH-0752-05-0531-I-1 (May 12, 2006), 

sustaining the decision of the Department of Veterans Affairs ("VA") to remove Cebula 

from his position due to his physical inability to perform the duties of his position. For 

the reasons set forth in this opinion, we affirm. 

I. BACKGROUND 

 *

 Honorable Sue L. Robinson, Chief District Judge, United States District 

Court for the District of Delaware, sitting by designation. 
 Cebula was employed at a VA office in Boston, Massachusetts as a Contract 

Specialist involved in the solicitation and processing of construction and services 

contracts. From October 19, 2004 until the end of his employment by the VA on June 

17, 2005, Cebula was unable to work due to his medical conditions. His treating 

physician, Dr. Mark Schlickman, initially diagnosed him with major depression and 

related symptoms, recommending that he not work from October 19, 2004 until 

November 19, 2004. Dr. Schlickman revised his diagnosis and extended the date of 

Cebula's expected return to work several times in the ensuing months, eventually 

diagnosing Cebula with bipolar disorder on April 29, 2005, and pushing back the date 

on which he could return to work to July 1, 2005. Dr. Schlickman indicated multiple 

times in letters to the VA that Cebula's condition precluded his performing any of his 

duties—or any employment at all—and that his disability could be permanent. 

 On May 3, 2005, the VA sent Cebula a letter informing him of the agency's 

proposal to remove him from his position due to physical inability to perform its essential 

duties. After considering Cebula's response, the agency notified Cebula that it had 

decided to remove him effective June 17, 2005. Cebula filed an appeal to the MSPB on 

July 19, 2005. The administrative judge ("AJ") sustained the agency's decision on 

February 3, 2006, finding that (1) a nexus existed between Cebula's medical condition 

and his inability to perform his duties, (2) his removal promoted the efficiency of the 

service, and (3) his removal was reasonable. The MSPB denied Cebula's petition for 

review, making final the AJ's decision, on May 12, 2006. Cebula then filed this appeal. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

II. DISCUSSION 

2006-3312 2
We must affirm a decision of the MSPB unless it is "(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); Hayes v. Dep't of the Navy, 727 F.2d 

1535, 1537 (Fed. Cir. 1984). 

The AJ applied the proper analysis for reviewing an agency's removal action. 

The agency must show (1) the charged conduct occurred or condition exists, (2) a 

nexus between the condition and the deficiencies in performance, (3) the removal 

promotes the efficiency of the service, and (4) the removal is a reasonable penalty. See

James v. Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004). 

Here, the MSPB's decision is amply supported by the record. Cebula had been 

on sick leave for over six months by the time the agency proposed to remove him from 

his position. His own physician indicated that the disability prevented his performing 

any of the duties of his employment and also indicated that the condition could be 

permanent. Further, Cebula admitted during the proceedings before the AJ that he 

remained unable to work. A nexus clearly existed between his medical condition and 

the deficiencies of his performance, namely not being able to do the work his position 

requires. 

The record also supports the finding that Cebula's removal promoted the 

efficiency of the service. Cebula could not perform any of the duties of his position for a 

substantial length of time, and the likelihood of his being able to resume his duties was 

questionable. The agency and its function would clearly benefit by replacing Cebula 

with an employee who is able to perform the duties of the position. 

2006-3312 3
Finally, "the choice of penalty is committed to the sound discretion of the 

employing agency and will not be overturned unless the agency's choice of penalty is 

wholly unwarranted in light of all the relevant factors." Guise v. Dep't of Justice, 330 

F.3d 1376, 1382 (Fed. Cir. 2003). The relevant factors are those enumerated in 

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). While the MSPB gave 

only a cursory examination of the Douglas factors in its initial decision, any error was 

harmless as the record substantially supports the MSPB's finding that the penalty was 

reasonable. Given the nature and duration of Cebula's condition, his physician's 

consistent recommendation that he not engage in any employment, and the unlikelihood 

of significant improvement in his condition, the agency's decision to remove Cebula was 

reasonable. 

2006-3312 4