CURTIS DOUGLAS

v.

VETERANS ADMINISTRATION

JOSEPH E. CICERO

v.

VETERANS ADMINISTRATION

DOUGLAS C. JACKSON

v.

DEPARTMENT OF THE AIR FORCE

JAMES K. ANDERSON

v.

DEPARTMENT OF THE AIR FORCE

Luis A. JIMENEZ

v.

DEPARTMENT OF THE ARMY

JOHN NOCIFORE

v.

DEPARTMENT OF THE NAVY

JOHN DENNIS

v.

DEPARTMENT OF THE NAVY

Docket No.

AT075299006

Docket No.

NY075209013

Docket No.

DE075299003

Docket No.

AT075209029

Docket No.

NY075209018

Docket No.

SF075299023

Docket No.

SF075299024

OPINION AND ORDER

Under 5 U.S.C. 1205(a)(l), as enacted by the Civil Service Reform

Act of 1978 ("the Reform Act"),1 this Board is authorized and directed

to "take final action" on any matter within its jurisdiction. These cases

present the question of whether that statutory power includes authority

to modify or reduce a penalty imposed on an employee by an agency's

adverse action, and if so, by what standards that authority should be

exercised. For the reasons set out hereafter, we conclude that the Board

does have authority to mitigate penalties when the Board determines

that the agency-imposed penalty is clearly excessive, disproportionate

to the sustained charges, or arbitrary, capricious, or unreasonable. We

also conclude that this authority may be exercised by the Board's presiding officials, subject to our review under 5 U.S.C. 7701(e)(l).

The appellants in these cases, career employees in the competitive

service, were each removed by their agencies upon charges of job-

'All citations herein to Title 6 of the United States Code are to U.S.C.A. (1980), unless

otherwise stated.

313
related misconduct under 5 U.S.C. 7513. In all but one case, they alleged

in their appeals before this Board that the penalty imposed by the agency

was too severe. The Board's presiding officials sustained the agency

decisions, finding that selection of an appropriate penalty is a matter

essentially committed to agency discretion and not subject to proof. The

Board thereupon reopened the initial decisions to consider these issues.

Subsequently, by Federal Register notice the Board invited the submission of amicus briefs on whether the "preponderance of the evidence"

standard is applicable in determining whether the agency-imposed punishment is to be sustained, and on whether the Board may modify or

reduce an agency-imposed penalty when it finds that the penalty does

not promote the efficiency of the service.2 Briefs were filed by-a dozen

federal departments and agencies, by four federal employee unions, and

by the parties.3 Requests for oral argument, filed by 0PM and AFGE,

are hereby DENIED.

We address these issues, and the application of our determinations

on these questions to the cases before us, in three parts herein. In Part

I we consider whether the Board has authority to mitigate agencyimposed penalties, concluding that it has the same broad authority that

the former Civil Service Commission had in this respect. In Part II we

consider and elaborate upon the standards which govern the proper

exercise of this authority. In Part III we consider the application of

those standards to the cases of the seven individual appellants, which

are hereby consolidated for purposes of this decision. 5 U.S.C. 7701(f)(D;

5 C.F.R. 1201.36(a)(l).

i. THE BOARD'S AUTHORITY TO MITIGATE PENALTIES

The Office of Personnel Management (0PM), most of the agencies,

and AFGE urge that the Board lacks authority to mitigate an agencyselected penalty. They acknowledge that an agency's choice of penalty

may be so disproportionate to an offense or otherwise improper as to

constitute an abuse of discretion warranting reversal by the Board.

However, they assert that in such cases the Board may not itself reduce

or modify the penalty but must instead remand the appeal to the employing agency for selection and imposition by the agency of a substitute

penalty, subject to further appeal to the Board from the agency's sub2

45 Fed. Reg. 6677 (1980).

3Briefs were received from the Office of Personnel Management (0PM), the Acting

Special Counsel of the Board, the Departments of Agriculture, Health Education and

Welfare (now Health and Human Services), Interior, Justice, and the Navy, the Defense

Logistics Agency, the Federal Trade Commission, the Internal Revenue Service, the

U.S. Postal Service, the American Federation of Government Employees (AFGE), the

National Federation of Federal Employees, the National Association of Government Employees, and the National Treasury Employees Union. A statement in support of OPM's

brief was submitted by the Securities and Exchange Commission. Briefs had also been

received from 0PM as intervenor in response to our reopening orders, and 0PM with

the Board's leave filed a response to the amicus briefs.

314
stituted penalty.4

 For the Board itself to modify or reduce a penalty,

they contend, would intrude upon the employing agency's managerial

functions. The proponents of this position cite various federal court

decisions referring to selection of penalties as a matter within "agency"

discretion; 0PM also emphasizes the purpose of the Reform Act to

separate managerial from adjudicatory functions in the civil service

system.

The other federal employee unions and the Acting Special Counsel,

on the other hand, point to the authority previously reposed in the

former Civil Service Commission to mitigate or lessen agency-imposed

penalties. The Commission delegated that authority to its Federal Employee Appeals Authority (FEAA) and Appeals Review Board (ARB)

for certain categories of cases,5 otherwise reserving such authority to

the Commissioners themselves.6 Under Reorganization Plan No. 2 of

1978 and the Civil Service Reform Act, it is contended, this Board as

the successor agency to the Commission is vested with the same power

to mitigate or lessen penalties imposed by agencies. These participants

also urge that such authority is inherent in the Board's adjudicative

function and is necessary to the proper exercise of the Board's statutory

role as a strong, independent protector of merit system principles, including particularly the principle of "fair and equitable treatment in all

aspects of personnel management."7

None of the cases relied upon by 0PM and those supporting its position

holds or even states in dictum that the Board, or the Civil Service

Commission before it, lacks mitigation authority. In numerous other

cases, discussed below, the federal courts have directed the Board or

4APGE contends that the Board can only reverse the entire adverse action, providing

such guidance as the Board chooses to reduce the likelihood of a further appeal from a

newly-imposed penalty upon a second adverse action which may thereupon be instituted

by the agency. AFGE Br. at 11-12.

"Civil Service Commission Personnel Manual, Delegations of Authority, sees. 106.01(G),

109.01(C) (May 1975) (authority delegated to FEAA and ARB to "mitigate or lessen

penalties imposed by agencies by adverse actions, when . . . the penalties imposed are

not in accord with agency policy or practice in similar situations"). The predecessor of

the ARB was the Commission's Board of Appeals and Review (BAR).

6

/d., sees. 106.01(1), 109.01(D).

7

5 U.S.C. 2301(b)(2). In addition, these unions and the Acting Special Counsel refer to

5 U.S.C. 7121(e)(2), which requires arbitrators when considering grievances otherwise

appealable to the Board to be governed by the same standards that govern adverse actions

before the Board, a provision designed to promote consistency in resolution of adverse

action disputes and to avoid forum-shopping. See Conference Report on S.2640, H. Rep.

No. 95-1717, 95th Cong., 2d Sess. 157 (1978). This provision, they contend, indicates that

Congress understood the Board's authority to include mitigation of penalties, since Congress was presumably aware of the well-known power of arbitrators to mitigate or modify

agency-imposed discipline and the Congressional purpose of achieving consistent outcomes

and avoiding forum-shopping could not be achieved if the Board were not expected to

exercise the same power. We find it unnecessary to address this contention in view of

the other grounds for our decision.

315
its predecessor Commission to redetermine agency-imposed penalties,

or acted upon the clear premise that the courts and/or the Board or

Commission possessed authority to impose lesser penalties, or the courts

have themselves mitigated Commission-approved penalties. It is undisputed that the Commission did in fact exercise authority to mitigate

penalties. Before examining those cases, however, an important distinction which has been generally ignored in the agency briefs and elided

by 0PM should be clarified.

All of the cases cited to us relate to the scope of judicial review of

agency action. Much confusion in the arguments before us arises from

the unarticulated and mistaken assumption that the Board's role in

relation to employing agencies must be assimilated to that of a reviewing

federal court. It is indeed true that Congress clearly intended the Board

to function in an independent, n on partisan, quasi-judicial role with newly

authorized powers normally exercised only by courts.8 In this respect

the Reform Act was responsive to studies which had long suggested a

need for the appellate functions of the former Civil Service Commission

to be pierformed in a more judicial manner.9 However, the Board nonetheless remains and is designed to function as an independent administrative establishment within the Executive Branch, not as part of the

Judicial Branch. The Board's authority may rest as uncomfortably on

the shoulders of the agencies whose actions are appealable to it as the

authority of the NLRB, SEC, FTC, FCC, and other independent regulatory agencies rests upon those whose actions are subject to their

respective jurisdictions. Nevertheless, as is the case with those agencies, it is the final orders or decisions of the Board which constitute the

acts of "the Government" for purposes of judicial review.10

It is, therefore, incorrect to assume that federal court decisions concerning the scope of judicial review of "agency actions" apply equally

to the Board's review of appealable personnel actions. Such an assumption most obviously ignores the fact that 5 U.S.C. 7701 provides for de

novo review by the Board of both factual and legal questions," whereas

6

See H.Rep. No. 95-1403, 95th Cong., 2d Sess. 4, 6-7, 18-20, 22-23 (1978); S.Rep. No.

95-969, 95th Cong., 2d Sess. 6-7, 29-52, 51-55, 60-64 (1978); H.Rep. No. 95-1717, 95th

Cong., 2d Sess. 133, 137-43 (1978).

9

E.g., Guttman, The Development and Exercise of Appellate Powers in Adverse Action

Appeals, 19 Am. U. L. Rev. 323, 333-51, 365-66 (1970).

"See 5 U.S.C. 7703(a)(l), (d). Compare 5 U.S.C. 702 (1977).

"See McTiernan v. Gronouski, 337 F.2d 31, 35-36 <2d Cir. 1964). See also H.Rep. No.

96-1080 on H.R. 2510, 96th Cong., 2d Sess. 3 (1980) (" . . . it is true as 0PM points out

that. . , section 7701 of Title 5, United States Code,. . . provides for a de novo review

by the Board of both procedural and factual questions.. . ."); S.Rep. No. 96-1004 on H.R.

2510, 96th Cong., 2d Sess. 2-3, 5 (1980). The power of de novo review includes the power

to modify penalties. See Goodman v. United States, 518 F.2d 505 (5th Cir. 1975); Cross

v. United States, 512 F.2d 1212 (4th Cir. 1975) (en bane); Brennan v. Occupational Safety

and Health Review Comm'n, 487 F.2d 438, 441 (8th Cir. 1973); United States v. Daniels,

418 F.Supp. 1074, 1080-81 (D. S.Dak. 1976). Moreover, the Board, unlike the courts,

316
judicial review of Board decisions is limited to the record established

before the Board (except in discrimination cases).12 We have previously

referred to this distinction in explaining the special meaning of the term

"appellate jurisdiction" as used in our regulations:

The term "appellate jurisdiction" is used because the Board is reviewing an appeal from an agency action. Use of this term is not

meant to indicate that the Board's review of the agency determination is limited to a traditional appellate review. [44 Fed. Reg.

38342 (1979)]

More recently, in Parker v. Defense Logistics Agency, IMSPB 489,497

(1980), we amplified on this same distinction:

. . . [T]he Board is not a Court of Appeals but rather is itself an

administrative establishment within the Executive Branch, albeit

one exercising independent quasi-judicial functions. It is the Board's

decision, not the agency's, that constitutes an "adjudication" (5

U.S.C. 1205(a)(l)) which must be articulated in a reasoned opinion

providing an adequate basis for review by a Court of Appeals (or

by the Court of Claims, 5 U.S.C. 7703). The mere fact that the

agency's decision is appealable to the Board does not limit the Board's

scope of review to that of an appellate court. . . .

The federal courts have recognized, in the very cases relied upon by

0PM, that it was the exercise of the Civil Service Commission's discretionary authority that was under review and entitled to a degree of

judicial deference, not simply the employing agency's.13 This has been

"deals with the relationship of penalty to violation on a frequent basis" and is thus better

positioned than the courts to achieve "uniformity and coherence of administration," See

Kulkin v. Bergland, 626 F.2d 181, 185 (1st Cir. 1980).

l2See 5 U.S.C. 7703(c); Pascal v. United States, 543 F.2d 1284, 1287 n.3 (Ct. Cl. 1976);

Dabney v. Freeman, 358 F.2d, 533, 537 (D.C. Cir. 1965). This distinction is overlooked

by 0PM in asserting erroneously that Congress established "a similar reviewing role for

both MSPB and the courts" (0PM Memorandum as Intervenor in Douglas and Jackson,

at 3 n.2). On that mistaken premise 0PM then erects the argument that judicial principles

governing review of an agency-imposed penalty should also be applied by the Board, citing

Morgan v. United States, 307 U.S. 183,191 (1939). However, Morgan held that a federal

court of equity should avoid reaching a result contrary to that of a federal agency on a

rate-making question within the agency's statutory jurisdiction, a conclusion which, if

pertinent at all to the present issue, suggests rather that the courts should respect the

results reached by the Board within its statutory jurisdiction. See Butz v. Glover Livestock

Commission Co., 411 U.S. 182 (1973). Morgan, of course, predates the Administrative

Procedure Act of 1946 whose judicial review provision, section 10(e), 5 U.S.C. 706 (1977),

is now paralleled by 5 U.S.C. 7703(c).

^Henley v. United States, 379 F.Supp. 1044, 1049 (M.D. Pa. 1974); Grover v. United

States, 200 Ct. Cl. 337, 354 (1973); Birnholz v. United States, 199 Ct. Cl. 532, 538 (1972);

Heffron v. United States, 405 F.2d 1307, 1310 (Ct. Cl. 1969). In Harvey v. Nunlist, 499

F.2d 335 (5th Cir. 1974), the employee bypassed Civil Service Commission appellate

procedures which were then optional for Post Office employees, see 5 C.F.R. 771.222

(1973), and appealed directly to federal court after exhausting internal Post Office administrative appeals. Henley v. United States, supra, in regarding the penalty selected

as beyond the court's scope of review, relied upon a statement in Jaeger v. Stephens, 346

317
recognized in numerous other cases as well, "some of which emphasized

the deference due the discretionary determinations of the Civil Service

Commission as the agency charged by Congress with the primary responsibility for enforcing the employee protection provisions of the Veterans Preference Act.15

 In consequence, courts have sometimes loosely

equated the Civil Service Commission and now the Board with the

agency taking the adverse action against the employee.16 Frequently

the severity of the penalty has been explicitly referred to by the courts

as a matter within the discretion of the Civil Service Commission.17

It cannot be doubted, and no one disputes, that the Civil Service

Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies.18

 Nor can it be doubted that the

F.Supp. 1217, 1226 (D.Colo. 1971), quoting Bishop v. McKee, 400 F.2d 87, 88 (10th Cir.

1968), for the principle that the "remedy necessary to promote the efficiency of the civil

service is a matter peculiarly and necessarily within the discretion of the Civil Service

[Commission] and cannot be disturbed on judicial review absent exceptional circumstances

not here present." Bishop v. McKee and its progeny thus expressed no limitation on the

Civil Service Commission's authority concerning penalties.

"E.g., Elliott v. Phillips, 611 F.2d 658, 660 (6th Cir. 1979); Smith v. United States

Air Force, 566 F.2d 957, 958 (5th Cir. 1978); Phillips v. E&rgianA, 586 F.2d 1007, 1012,

1015 (4th Cir. 1978); Cameron v. United States, 566 F.2d 1191 (Ct. Cl. 1977); Doe v.

Hampton, 566 F.2d 265, 275 (D.C. Cir. 1977); Pascal v. United States, 543 F.2d 1284,

1290 (Ct. Cl. 1976); Wroblaski v. Hampton, 528 F.2d 852, 855-56 (7th Cir. 1976); Lwtta

v. United States, 174 Ct. Cl. 91, 96 (1966); Dabney v. Freeman, 358 F.2d 533, 537 (D.C.

Cir. 1965); Monahan v. United States, 354 F.2d 306,310 (Ct. Cl. 1965); Carter v. Forrestal,

175 F.2d 364, 365-66 (D.C. Cir. 1949).

l5E.g., Adkins v. Hampton, 586 F.2d 1070, 1074 (5th Cir. 1978); Gueory v. Hampton,

510 F.2d 1223, 1227 (D.C. Cir. 1974).

K

E.g., Yacavone v. Bolger, No. 79-2043 (D.C. Cir. Feb. 20, 1981) (Slip Op. at 7) (MSPB

decision referred to as "nexus determination . . . made by the agency"); Boyce v. United

States 543 F.2d 1290, 1294-95 (Ct. Cl. 1976); Fitzgerald v. Hampton, 467 F.2d 755, 766

(D.C. Cir. 1972) (Commission 'takes affirmative action" affecting employee's rights);

Norton v. Macy, 417 F.2d 1161, 1169 (D.C. Cir 1969) (dissenting opinion) ("action of the

Commission in dismissing this man").

"E.g., Tucker v. United States, 624 F.2d 1029, 1034 (Ct. Cl. 1980); Byrd v. Campbell,

591 F.2d 326,331-332 (5th Cir. 1979); Bmzzotie v. Hampton, 433 F.Supp. 92, % (S.D.N.Y.

1977); Giles v. United States, 553 F.2d 647, 651 (Ct. Cl 1977); Coates v. United States,

208 Ct. Cl. 1035,1037 (1976); Wathen v. United States, 527 F.2d 1191,1203 (Ct. Cl. 1975),

cert, denied, 429 U.S. 821 (1976). See also Bishop v. McKee, quoted in note 13, supra.

18OPM so concedes in its Memorandum as Intervenor in Douglas and Jackson, at 4.

While the Board's records of CSC cases are incomplete, the following examples are sufficient to illustrate the actual exercise of the Commission's mitigation authority: Clyde

Hayes (TVA), No. RB752B50288 (ARE Sept. 19, 1974) (removal reduced to 30-day suspension); James F. Lillard (TVA), No. RB752B50289 (ARB Sept. 19, 1974) (removal

reduced to 30-day suspension); David C. Corson (D&pt. of Army), Commissioners' Letter

to agency reopening BAR No. 752B-73-558 (May 11, 1973) (removal reduced to 30-day

suspension); James D. King, Jr. (Post Office), No. 752B-72- (BAR Sept. 19, 1972)

(removal reduced to 30-day suspension); Thomas A. Horan (Postal Service), No. 752B73-33 (BAR July 25, 1972) (removal reduced to 60-day suspension); Richard D. Meehan

318
federal courts have regarded that authority as properly within the Commission's power.19

 Indeed, the courts have themselves exercised the

power to mitigate Commission-sustained penalties.20

The Commission's mitigation authority was based on 5 U.S.C. 7701

(1967) and on 5 U.S.C. 1104(a)(5) and (b)(4) (1977). The former provision,

relating only to adverse action appeals of preference eligibles, required

employing agencies to "take the corrective action that the Commission

finally recommends."21 The latter provisions established a statutory ba-

(Canal Zone), CSC Minutes of Proceedings Oct. 7, 1970 (Appeals Examining Office's

reduction of removal to 90-day suspension following remand from Court of Appeals for

"agency" reconsideration of penalty, 425 F.2d at 473, approved by Commissioners notwithstanding Canal Zone Government's contention upon request for reopening that "the

issue remanded was to be resolved by the agency, and not the Commission," Letter of

Canal Zone governor to CSC Chairman, Aug. 28, 1970, at 6). See also Minnie L. Dixon

(Internal Revenue Service), No. 752B-74-4 (BAR July 3, 1973) (removal reduced to 60-

day suspension) and Margaret E. Boyce (Internal Revenue Service), No. 752B-74-6 (BAR

July 3, 1973) (removal reduced to 90-day suspension), both of which were subsequently

overruled by the Commissioners whose decision was thereafter reversed by the Court of

Claims in Boyce v. United States, 543 F.2d 1290 (Ct. Cl. 1976). In numerous other cases

the Commission explicitly weighed the severity of the penalty as distinct from whether

some disciplinary action was warranted, e.g., No. AR752B90458 (Office of Appeals Review, July 5, 1979); No. RB752B80194 (ARE May 17, 1978); No. RB752B70253 (ARE

Sept. 9, 1977); No. 752B-73-666 (BAR April 17, 1973).

TME.g., Cafferello v. Civil Service Commission, 625 F.2d 285 (9th Cir. 1980) (reversing

district court which found that ARE should have mitigated penalty, but not questioning

ARB's authority to mitigate); Howard v. United States, No. Civ. LV-77-219 RDF (D.

Nev. July 3,1980) (remanding to MSPB to reconsider severity of penalty and, if removal

is found unwarranted, to "formulate an appropriate remedy"); Byrd v. Campbell, 591

F.2d 326, 331-32 (5th Cir. 1979) (remanding to FEAA for reconsideration of severity of

penalty); Boyce v. United States, 543 F.2d 1290 (Ct. CI. 1976) (Commissioners provided

inadequate explanation for overruling BAR's decision to reduce penalties); Slotvick v.

Hampton, 470 F.2d 467, 469 (D.C. Cir. 1972) (ordering remand for "administrative redetermination of the proper sanction"), thereafter remanded to the Commission by the

district court's order of Dec. 13,1972 for "a determination of the proper sanction," whereupon the Commission, after affording the parties an opportunity to comment, directed

the agency to cancel the removal action and reinstate the employee with no suspension,

No. 752B-73-666 (BAR April 17, 1973); Meehan v. Macy, 425 F.2d 472, 473 (D.C. Cir.

1969) (en bane) (remanding to Civil Service Commission to reconsider severity of penalty),

thereafter considered by the Commission in Richard D. Meehan (Canal Zone), discussed

in note 18, sttpra. See also cases cited in note 17, supra.

w

E.g., Francisco v. Campbell, 625 F.2d 266 (9th Cir. 1980) (affirming district court's

finding that penalty was excessive but reversing reinstatement order and remanding to

district court for "reconsideration of the imposition of proper discipline"); Power v. United

States, 531 F,2d 505, 510 (Ct. Cl. 1976), cert, denied, 444 U.S. 1044 (1980) (awarding back

pay because removal penalty was excessive but not ordering reinstatement); Clark v.

United States, 162 Ct. Cl. 477, 486-87 (1963) (back pay award for improper removal

reduced to allow for 90-day suspension); cf. Cuiffo v. United States, 137 F.Supp. 944, 950

(Ct. Cl. 1955) (back pay award for excessive suspension reduced to allow for 30-day

suspension).

21This provision derived from section 14 of the Veterans Preference Act of 1944, as

amended in 1947 to provide that "it shall be mandatory for such administrative officer to

take such corrective action as the Commission finally recommends," Pub. L. 80-325, Aug.

319
sis for the Commission's function of "hearing or providing for the hearing

of appeals" and "taking. . . final action" in all matters appealable to it,

as well as of "enforcing" its decisions.22

The authority granted by each of these provisions was expressly specified to "remain with the Board" under Reorganization Plan No. 2 of

1978, which redesignated the Commission as the Merit Systems Protection Board23

 and provided in Section 202:

(a) There shall remain with the Board the hearing, adjudication,

and appeals function of the United States Civil Service Commission

specified in 5 U.S.C. 1104(b)(4) (except hearings, adjudications and

appeals with respect to examination ratings), and also found in the

following statutes:

(i) 5 U.S.C. . .7701

(b) There shall remain with the Board the functions vested in

the United States Civil Service Commission, or its Chairman, pursuant to 5 U.S.C. 1104(a)(5) and (b)(4) to enforce decisions rendered pursuant to the authorities described in Subsection (a) of this

Section. [Emphasis supplied]

These provisions have now been succeeded by new Section 1205(a) of

Title 5, as enacted by the Reform Act, sec. 202(a), 92 Stat. 1122, which

provides:

(a) The Merit Systems Protection Board shall—

(1) hear, adjudicate,or provide for the hearing or adjudication,

of all matters within the jurisdiction of the Board under this title

4, 1947, 61 Stat. 723, originally codified as 5 U.S.C. 863 and recodified in 1966 as Section

7701. See also the 1948 amendment to section 19 of the Veterans Preference Act, applicable

to appeals of preference eligibles based on Commission regulations, which similarly provided that "any recommendation by the Civil Service Commission, submitted to any

Federal agency, on the basis of the appeal of any preference eligible, employee or former

employee, shall be complied with by such agency," Pub. L. 80-741, June 22,1948,62 Stat.

575, originally codified as 5 U.S.C. 868 and also recodified in 1966 as Section 7701. The

effect of the 1947 amendment is discussed in Feldman v. United States, 181 F.Supp. 393,

395-96 (Ct. CL 1960); Goodwin v. United States , 118 F.Supp. 369, 370-71 (Ct. Cl. 1954);

Wettre v. Hague, 74 F.Supp. 396, 399 (D. Mass. 1947), vacated and remanded on other

grounds, 168 F.2d 825 (1st Cir. 1948); 33 Comp. Gen. 295, 2% (1954) ("the Commission

has the authority to determine what constitutes proper 'corrective action'. . ."); 28 Comp.

Gen. 489, 491 (1949) ("it is clear that the Civil Service Commission is authorized to

determine the nature and extent of the corrective action to be taken").

^Section 1104 in 1966 codified section 2(a)(6) of Reorganization Plan No. 5 of 1949, 14

Fed. Reg. 5227, 63 Stat. 1067, which provided for the Commission's function with respect

to "enforcing" its decisions and "the hearing or providing for the hearing of appeals . . .

and the taking of such final action on such appeals as is now authorized to be taken by

the Commission." Appeal rights were extended to non-preference eligibles in the competitive service by Executive Order No. 10,988 of January 17, 1962, 3 C.F.R. 521, 5

U.S.C. 631 (1964), and Executive Order No. 11,491 of October 29, 1969, 3 C.F.R. 861

(Supp. 1966-1970), 5 U.S.C. 7301 (1970).

a

Sec. 201(a), H.Doc. No. 95-341, 95th Cong., 2d Sess., 92 Stat. 3784, 5 U.S.C. 1101

note.

320
... or any other law, rule, or regulation, and, subject to otherwise

applicable provisions of law, take final action on any such matter;

(2) order any Federal agency or employee to comply with any

order or decision issued by the Board under the authority granted

under paragraph (1) of this subsection and enforce compliance with

any such order. . . .

Thus, unless "inconsistent with any provision in" the Reform Act,24 the

functions specified as remaining with the Board under Section 202 of

Reorganization Plan No. 2 of 1978, including the former Commissioner's

mitigation authority, remain vested in the Board through 5 U.S.C.

Neither 0PM nor any other participant has claimed that the mitigation

authority preserved in the Board by section 202 of Reorganization Plan

No. 2 is inconsistent with any particular provision of the Reform Act.

Instead, 0PM argues broadly that the former Commission's mitigation

authority reflected its "management responsibilities" in the Commission's dual capacity as government-wide personnel manager and appeals

adjudicator, and that the separation of such "managerial decision-making" functions from the Board's adjudicatory function was one of the

fundamental principles of the Reform Act.26

OPM's statement of this Reform Act principle is generally unexceptionable. However, the argument that this principle excludes the Board's

mitigation authority takes no account of the obvious fact that the identical principle was also embodied in Reorganization Plan No. 2 of 1978, "

which as shown by the foregoing discussion expressly provided in section

202 that the statutory functions establishing the former Commission's

mitigation authority were to remain with the Board. That authority was

thus clearly included among those described by both the President and

Congress, in explaining the Reorganization Plan, as comprising the former Commission's adjudicatory and appellate functions.28

 The Reform Act

M

Sec. 905 of the Reform Act, 92 Stat. 1224, 5 U.S.C. 1101 note.

ffiOf course, Section 1205(a) is not the exclusive provision embodying the surviving

authorities set forth in the pre-Reform Act provisions of 5 U.S.C. 1104 and 7701. Both

of those provisions, as amended substantially by the Reform Act in respects not pertinent

here, survive as sources of important authorities for 0PM and the Board respectively.

^OPM Memorandum as Intervenor in Douglas and Jackson, at 4-5. See also amicus

brief of the Department of the Navy, at 5-6.

"See Message from the President of the United States Transmitting Reorganization

Plan No. 2 of 1978, H.Doc, No. 95-341, 95th Cong. 2d Sess. 1 (1978); H.Rep. No. 95-13%,

95th Cong., 2d Sess. 1-2, 5-6, 9-11 (1978); S.Rep No. 95-1049, 95th Cong., 2d Sess. 1-

2, 5-6 (1978).

®See Message from the President, id. at 1 ("The . . . Board will exercise all of the

adjudication and appellate functions now vested in the Civil Service Commission"); S.Rep.

No. 95-1049, supra, at 2 (same); Hearings Before a Subcom. of the House Comm. on

Government Operations on Reorganization Plan No. 2 of 1978, 95th Cong., 2d Sess. 13,

22 (statements of James T. Mclntyre), 56,70,92 (statements of Alan K. Campbell) (1978).

321
was designed to make no change in the assignment to the Board of those

functions.29

The 1947 amendment to section 14 of the Veterans Preference Act,

from which the Commission's mitigation authority originally derived,30

had been similarly regarded as necessary to the Commission's appellate

adjudicative function.31 That amendment was opposed by several agencies in 1947 on the same purported grounds of managerial prerogative

now revived by 0PM, but the objection was then deemed "groundless"

by Congress,32 and intervening law and history have rendered the argument obsolete. The Reform Act and Reorganization Plan No. 2 of

1978 were companion enactments adopting a complementary set of reforms as part of a comprehensive legislative proposal.33

 It is too late

now to contend that a hitherto unperceived inconsistency between section 202 of the Reorganization Plan and unspecified provisions of the

Reform Act somehow had the effect of silently abrogating the Board's

mitigation authority, on the strength of theories about managerial prerogative that Congress expressly rejected more than 30 years ago.34

.Rep. No. 95-1403, 95th Cong., 2d Sess. 4, 6 (1978); 124 Cong. Rec. H9375 (daily

ed. Sept. 11, 1978) (statement of Rep. Ford) (" . . . there is a merit system protection

board of three members which performs the merit system protection functions that the

present three Civil Service Commissioners have traditionally performed"). See also note

33, infra, and accompanying text.

^See note 21, supra.

S18ee H.Rep. No. 315 on H.R. 966, 80th Cong., 1st Sess. 1-2 (1947); S.Rep. No. 568

on H.R. 966, 80th Cong., 1st Sess. 1-3 (1947); S.Rep. No. 631 on S.1494, 80th Cong. 1st

Sess. 1 (1947); 93 Cong. Rec. 7467 (daily ed. June 19,1947) (amendment "protects veterans

from arbitrary administrative decisions by making the recommendations of the Civil

Service Commission binding on the executive departments and agencies"); Hearings Before Senate Comm. on Civil Service, on Veterans' Legislation, 80th Cong., 1st. Sess. 29

("In this instance [under prior law] we have-an appeal system, but the final court of

appeals is unable to enforce its findings upon the agencies involved"), 35 ("We feel that

the Civil Service Commission, sitting in judicial capacity, can much more fairly pass on

these things than the supervisors of some of these agencies, and on up the line. . . .")

(1947).

^H.Rep. No. 315 on H.R. 966, 80th Cong., 1st Sess. 2 (1947). See also S.Rep. No. 568

on H.R. 966, 80th Cong., 1st Sess. 2-3, 5-6 (1947).

:aSee Message from the President, supra, at 1; S.Rep. No. 95-1049, swpra.'at 1; Hearings

before a Subcom. of the House Comm. on Government Operations on Reorganization Plan

, Plan No. 2 of 1978, 95th Cong., 2d Sess. 15-16, 106, 108, 232; S.Rep. No. 95-969 on

S.2640, 95th Cong., 2d Sess. 2, note 1 (1978); Hearings Before the House Comm. on Post

Office and Civil Service on H.R. 11280, 95th Cong., 2d Sess. 20, 23-24 (1978).

^OPM does not claim that either the Reorganization Plan or the Reform Act assigned

to 0PM the authority to order a modification in an agency-imposed penalty, nor has 0PM

purported to assert such authority in any of the roughly 12,000 cases already adjudicated

by the Board under the Reform Act. OPM's argument thus amounts to a contention that

Congress in 1978 repealed altogether the mitigation authority conferred by the 1947

amendment to the Veterans Preference Act. Nothing in the Reform Act or Reorganization

Plan, or their legislative history, supports such a contention. Of course, repeals by implication are disfavored. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 189-90 (1978);

322
Beyond legal analysis, there are also practical considerations which,

although not mandating our construction of the Board's authority, assure

us that this construction is consistent with the Reform Act's purposes

and efficient performance of the agencies' responsibilities. If we were

to conclude that the Board must remand cases involving excessive penalties to the employing agency for selection and imposition of a new

penalty by that agency, then a renewed appeal to the Board to review

the new penalty must be allowed, as 0PM, the agencies, and AFGE

concede.35 Such successive appeals would prolong ultimate resolution of

these cases, a result clearly contrary to Congress's desire for expedition

in concluding adverse action appeals.36

One agency suggests that if the Board has mitigation authority, managers might tend to impose unwarranted removal sanctions in reliance

upon Board modification of such penalties, instead of carefully considering the most appropriate penalty at the outset. We doubt this is a

substantial risk in many cases, given the care with which most agency

managers properly approach the exercise of their disciplinary responsibilities, as shown in thousands of cases already reviewed by this Board

and in innumerable cases before the former Civil Service Commission

which was vested with that same mitigation authority. The question is

not whether excessive penalties will sometimes be imposed by agencies,

which is probably inevitable regardless of the scope of the Board's authority, but whether in such cases the Board must be powerless to

prescribe a suitable remedy.

Virtually every objective study of the former Commission's appellate

operations recommended more rather than less frequent exercise of the

mitigation authority, in fairness both to employees and to agencies whose

disciplinary actions might otherwise be reversed on insubstantial grounds

to avoid imposition of a penalty perceived as too harsh.37 We find no

Regional Rait Reorganization Act Cases, 419 U.S. 102,133-34 (1974). If the Reform Act

and the mitigation authority vested in the Board by Section 202 of the Reorganization

Plan are "capable of co-existence, it is the duty of the courts, absent clearly expressed

congressional intention to the contrary, to regard each as effective." Morton v. Mancari,

417 U.S. 535, 551 (1974). Here, not only is there no such clearly expressed congressional

intention, there is clear indication that Congress intended in the combined Reform Act

and Reorganization Plan to provide for all of the former Commission's functions. In

transmitting the Reorganization Plan to Congress, the President expressly stated that,

"No functions are abolished by the Plan. . . ." Message from the President, supra, at 2.

^See note 4, supra, and accompanying text. Under that view there could in principle

be an indefinite number of such successive appeals in any particular case, until the agency

finally hits on a penalty that the Board sustains.

M

See 5 U.S.C. 7701(i)(4); S.Rep. No. 95-969 on S.2640, 95th Cong., 2d Sess. 9 (1978).

^E.g., Merrill, Report in Support of Recommendation 72-8, in 2 Recommendations

andReportsof the Administrative Conference of the United States, 1007, 1070-71(1972).

See also Note, Removal for Cause From the Civil Service: The Problem of Disproportionate Discipline, 28 Am. U. L. Rev. 207 (1979); Merrill, Procedures for Adverse Actions

Against Federal Employees, 59 Va. L. Rev. 196, 258-60 (1973); Guttman, The Devel323
reason to believe that Board mitigation authority will encourage easy

Draconianism in agency managers, or that any such tendency would be

greater if the Board prescribes the modified penalty than if the Boarddirected the agency itself to select a lesser penalty. Any operational or

disciplinary considerations deemed pertinent by the agency to selection

of a penalty will have already been brought to the attention of the

Board's presiding official if the agency has presented its case properly.38

Moreover, nothing in the Board's regulations restricts the discretion of

a presiding official to afford the parties an opportunity to submit additional information relating to possible alternative penalties if the presiding official finds it advisable to do so.

We hold that the Board's authority under 5 U.S.C. 1205(a)(l) to "take

final action" on matters within its jurisdiction includes authority to modify or reduce agency-imposed penalties. Like all other authorities exercised in appellate cases on the Board's behalf by its presiding officials

pursuant to 5 U.S.C. 7701(b) and 5 C.F.R. 1201.41, that authority is

subject to review or reopening by the Board under 5 U.S.C. 7701(e)(l).

II. STANDARDS GOVERNING EXERCISE OF THE BOARD'S MITIGATION

AUTHORITY

A. Scope of Review

Since the agency actions in these cases were taken under Chapter 75

of Title 5, the respective agency decisions to take those actions may be

sustained only if supported by a preponderance of the evidence before

the Board. 5 U.S.C. 7701(c)(l)(B). We must therefore consider whether

the preponderance standard applies only to an agency's burden in proving the actual occurrence of the alleged employee conduct or "cause" (5

U.S.C. 7513) which led the agency to take disciplinary action, or whether

that standard applies as well to an agency's selection of the particular

disciplinary sanction.

We have no doubt that insofar as an agency's decision to impose the

particular sanction rests upon considerations of fact, those facts must

be established under the preponderance standard and the burden is on

the agency to so establish them. This is so whether the facts relate to

aggravating circumstances in the individual case, the employee's past

work record, nature of the employee's responsibilities, specific effects

of the employee's conduct on the agency's mission or reputation, consistency with other agency actions and with agency rules, or similar

factual considerations which may be deemed relevant by the agency to

justify the particular punishment. Section 7701(c)(l) admits of no ambiguity in this regard, since an agency's adverse action "decision" necopment and Exercise of Appellate Powers in Adverse Action Appeals, 19 Am. U. L. Rev.

323,361-62 (1970); Report to Congress by the Comptroller General, No. B-179810, Design

and Administration of the Adverse Action and Appeals Systems Need to Be Improved

at 6-7, 22-26 (Feb. 5, 1974).

^See Report to Congress by the Comptroller General, id. at 23.

324
essarily includes selection of the particular penalty as well as the

determination that some sanction was warranted.39 The statute clearly

requires that all facts on which such agency decision rests must be

supported by the standard of proof set out therein.

It is also clear, however, that the appropriateness of a penalty, while

depending upon resolution of questions of fact, is by no means a mere

factual determination. Such a decision "involves not only an ascertainment of the factual circumstances surrounding the violations but also

the application of administrative judgment and discretion." Kulkin v.

Bergland, 626 F.2d 181, 185 (1st Cir. 1980). It is well established that

"assessment of penalties by the administrative agency is not a factual

finding but the exercise of a discretionary grant of power." Beo.ll Const.

Co. v. OSHRC, 507 F.2d 1041, 1046 (8th Cir. 1974).40 Thus, an adverse

action may be adequately supported by evidence of record but still be

arbitrary and capricious, for instance if there is no rational connection

between the grounds charged and the interest assertedly served by the

sanction. Doe v. Hampton, 566 F.2d 265, 271-72 n. 15 (D.C. Cir. 1977),

citing Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc.,

419 U.S. 281, 284 (1974).

The evidentiary standards of 5 U.S.C. 7701(c) specify the quantity of

evidence required to establish a controverted fact.41 As procedural devices for allocating the risk of erroneous factual findings,42

 those standards are inapposite to evaluating the rationality of non-factual

determinations reached through the exercise of judgment and discretion. For such determinations, the characteristic standard of review is

the arbitrary-or-capricious, or abuse-of-discretion, standard.*3

The standard of arbitrariness, capriciousness, or abuse of discretion

is employed by the courts in reviewing non-factual agency determinaYoung v. Hampton, 568 F.2d 1253,1264 (7th Cir. 1977). In construing a statutory

provision for de novo review of the "validity of the questioned administrative action"

under the Food Stamp Act, the Fifth Circuit has observed: " 'Action' is a unitary concept

which encompasses both a determination on the merits, and where guilt is established,

the meting out of a consequent penalty. Indeed, by the plain meaning of the term, it

would seem that 'action' against a guilty party is not complete until a sanction is imposed."

Goodman v. United States, 518 F.2d 505, 510 (5th Cir. 1975).

"See also Fuhrman v. Dow, 540 F.2d 396, 398 (8th Cir. 1976), quoting Brennan v.

OSHRC, 487 F.2d 438, 442 (8th Cir. 1973); Merrill, Procedures for Adverse Actions

Against Federal Employees, 59 U. Va. L. Rev. 196, 232 (1973).

41See Steadman v. SEC, 49 U.S.L.W. 4174 (U.S.,Feb. 26, I98l)farker v.Defense

Logistics Agency, 1 MSPB 489, 509 (1980).

*See Addington v. Texas, 441 U.S. 418, 423-27 (1979); Losure v. ICC, 2 MSPB 361,

366 (1980); McCormick on Evidence §§ 336-339 (2d ed. 1972); Winter, The Jury and the

Risk of Nonpersuasion, 5 Law & Soc. Rev. 335, 337 (1970-71).

*E.g., Amer. Optonuttric Ass'n v. FTC, 626 F.2d 8%, 904 (D.C. Cir. 1980); Francisco

v. Campbell, 625 F.2d 266, 269 (9th Cir. 1980); Giles v. United States, 553 F.2d 647, 651

(Ct. Cl. 1977), quoting Power v. United States, 531 F.2d 505 (Ct. Cl. 1976), cert, denied,

444 U.S. 1044 (1980). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

414-15 (1971).

325
tions, including those made by the former Civil Service Commission and

by this Board. See 5 U.S.C. 7703(c). However, as we have previously

noted, ante, 316, 317, it is incorrect to assume that the scope of judicial

review of "agency actions" applies equally to the board's review of appealable personnel actions, since our review is de novo and from an

appellate court's standpoint this Board's action is itself part of the "agency

action" reviewed under Section 7703(c). For this Board to exercise only

the limited review of adverse actions that the courts will subsequently

exercise in reviewing our own decisions under Section 7703(c) would

indeed seem anomalous. Such review would serve primarily to anticipate

the review function performed by the courts, perhaps thereby screening

out some adverse action decisions that would otherwise be reversed by

the courts but failing entirely to exercise the degree of independent

discretionary judgment entrusted to the Board by the Reform Act.

We need not resolve this conundrum for present purposes, however,

since in mitigating penalties we are not construing an authority newly

conferred upon us but are exercising only inherited authority. Our authority in this regard is the same as that previously vested in the former

Civil Service Commission. In enacting Section 7701(c), Congress understood that it was codifying the standard of proof previously used by

the Commission for misconduct cases,44 and that for both misconduct

and performance cases the evidentiary standards of Section 7701(c) apply to resolution of factual issues.45

 There is no suggestion in the Reform

Act or its legislative history that Congress sought to alter the scope of

the authority previously exercised by the Commission in reviewing agencyimposed penalties, as we have already found in Part I of this Opinion.

Therefore, in the absence of any indication that Congress intended us

to exercise a different authority, we will adhere to the standard of review

that was consistently articulated by the Commission and presumably

known to Congress.46

By that standard, the Commission reviewed agency penalties to determine whether they were "clearly excessive" or were "arbitrary, caS. Rep. No. 95-969, 95th Cong., 2d Sess. 54 (1978); H. Rep. No. 95-1403, 95th

Cong., 2dSess. 22(1978).

^See House Comm. on Post Office and Civil Service, Committee Mark-up of Civil Service

Reform Legislation, 95th Cong., 2d Sess. 64, 85-86, 93-94 (Comm. Print No. 33-782,

1978); Conference Report No. 95-1717, 95th Cong., 2d Sess. 139 (1978); 124 Cong. Rec.

13611 (daily ed. Oct. 14, 1978) (statement of Rep. Ford).

^In Parker v. Defense Logistics Agency, 1 MSPB 489, 499 n. 14 (1980), we noted with

respect to an evidentiary standard that had previously been applied by the Commission

but was modified by the Reform Act, "Regardless of whether the Commission's adoption

of this standard may have 'confused the standard for judicial review. . . with the standard

of proof governing the agency,'... the Commission's consistent use of this standard . . .

was presumably known to Congress."

326
pricious, or unreasonable."47

 Other formulations of the standard commonly

recited by the Commission were whether the penalty was "too harsh

and unreasonable under the circumstances,"48 or was "unduly harsh,

arbitrary, and unreasonable,"49 or reflected "an abuse of agency discretion, or ... an inherent disproportion between the offense and the

personnel action, or disparity in treatment" in violation of the "principle

of like penalties for like offenses."50 The latter principle dates to 1897,

when it was originally promulgated by President McKinley as part of

Civil Service Rule II under the Pendleton Act.51

In focusing not merely on whether a penalty was too harsh or otherwise arbitrary but also on whether it was "unreasonable," the Commission's standard appears considerably broader than that generally

employed by the federal courts. Both the Court of Claims and the Courts

of Appeals have characteristically reviewed Commission-approved penalties only to determine whether they were so disproportionate to the

offense as to amount to an abuse of discretion or whether they exceeded

the range of sanctions permitted by statute, regulation, or an applicable

table of penalties.62 The Commission's broad standard of "unreasona-

"E.g., No. RB752B80194(ARB May 17, 1978; No. RB 752B80080 (ARE Dec. 28, 1977);

No. RB752B70204(ARB June 21,1911); Richard R.Sivanson(National Security Agency),

No. RB752B60094 (ARE Sept. 3, 1976). See CSC Board of Appeals and Review, Memorandum No. 2, Guidelines for Determining When to Request a Single Delegation of

Authority From the Commissioners to Reduce Penalties in Part 752-B Cases, § 7, Sept,

28, 1972 ("Whether the penalty imposed is clearly excessive, or is arbitrary, capricious

or unreasonable, i.e., whether there are compelling reasons for reducing the penalty. In

other words, when the fact of error in the penalty assessed is so evident that justice or

equity demands a reduction of that penalty").

*E.g., Clyde Hayes (TVA), No. RB752B50288 (ARE Sept. 19, 1974); James F. Lillard

(TVA), No. RB752B50289 (ARE Sept. 19, 1974).

4

*E.g., Richard D. Meehan (Canal Zone), Appeals Examining Office decision, July 27,

1970, approved in CSC Minutes of Proceedings, Oct. 7, 1970.

w

E.g., No. AR752B90458 (Office of Appeals Review, July 5, 1979). See also No.

RB752B50387 (BAR Dec. 16, 1974) ("so harsh as to be arbitrary and capricious"); David

C. Corson (Dept. of Army), Commissioners' Letter reopening BAR No. 752B-73-558 (May

11, 1973) ("under all the circumstances too harsh"); Minnie L. Dixon (Internal Revenue

Service), No. 752B-74-4 (BAR July 3, 1973) ("too harsh"); Margaret E. Boyce (Internal

Revenue Service), No. 752B-74-6 (BAR July 3, 1973) ("too harsh"); James D. King, Jr.

(Post Office), No. 752B-72- (BAR Sept. 19, 1972) ("unduly harsh"); Thomas A. Horan

(Postal Service), No. 752B-73-33 (BAR July 25, 1972) ("too harsh").

"Fourteenth Report of the Civil Service Commission 113 (1896-1897). Rule II, § 6,

provided: "In making removals or reductions, or in imposing punishment, for delinquency

or misconduct, penalties like in character shall be imposed for like offenses, and action

thereupon shall be taken irrespective of the political or religious opinions or affiliations

of the offenders." See also Federal Personnel Manual, ch. 751, subch. l-2c (Dec. 21,1976);

compare 5 U.S.C. 2301(b)(2).

**E.g., Francisco v. Campbell, 625 F.2d 266, 269-70 (9th Cir. 1980); Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978); Young v. Hampton 568 F.2d 1253, 1264 n. 12 (7th

Cir. 1977); Giles v. United States, 553 F.2d 647 (Ct. Cl. 1977); Boyce v. United States,

543 F.2d 1290 (Ct. Cl. 1976); Power v. United States, 531 F.2d 505 (Ct. Cl. 1976), cert,

denied, 444 U.S. 1044 (1980); Rifkin v. United States, 209 Ct. Cl. 566 (1976); Graver v.

327
bleness," encompassing greater latitude of review than is typically employed by the appellate courts in appeals from Commission or Board

decisions, accords a measure of scope to the Commission's and now this

Board's independent discretionary authority which the courts have recognized.63

The Board's marginally greater latitude of review compared to that

of the appellate courts does not, of course, mean that the Board is free

simply to substitute its judgment for that of the employing agencies.

Management of the federal work force and maintenance of discipline

among its members is not the Board's function.54 Any margin of discretion available to the Board in reviewing penalties must be exercised

with appropriate deference to the primary discretion which has been

entrusted to agency management, not to the Board. Our role in this

area, as in others, is principally to assure that managerial discretion

has been legitimately invoked and properly exercised.55

At all events the Board must exercise a scope of review adequate to

produce results which will not be found "arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law" when reviewed

by appellate courts under Section 7703(c). This is the identical standard

prescribed by Section 706(2)(A) of the Administrative Procedure Act,

5 U.S.C. 706(2)(A) (1964 ed., Supp. V). To assure that its decisions meet

that standard under Section 7703(c), the Board must, in addition to

determining that procedural requirements have been observed, review

the agency's penalty selection to be satisfied (1) that on the charges

sustained by the Board the agency's penalty is within the range allowed

by law, regulation, and any applicable table of penalties, and (2) that

the penalty "was based on a consideration of the relevant factors and

[that]. . . there has [not] been a clear error of judgment." Citizens to

Protect Overton Park, Inc. v. Volpe, 401 U.S. 402,417 (1971).66 We take

the expression "clear error of judgment" in the sense of "clearly erroUnited States, 200 Ct. CL 337 (1973); Heffron v. United States, 405 F.2d 1307 (Ct. Cl.

1969). But see Cuiffo v. United States, 137 F.Supp. 944, 950 (Ct. Cl. 1955) (penalty "was

determined by accident, and not by a process of logical deliberation and decision").

^See text and cases cited at notes 13-17, supra.

"See 5 U.S.C. 7106 and authorities cited at notes 27-29, supra; Exec. Order 9830 of

Feb. 24, 1947, §§ 01.1, 01.3, 3 C.F.R. 608 (1943-1948 Comp.).

MC/. Ketterer v. Dept. of Agriculture, 2 MSPB 459, 461 (1980) (reassignment discretionary when based on legitimate management considerations); Losure v. ICC, 2 MSPB

361, 366 (I960) (RIF regulations may be invoked for management considerations of the

character appropriately committed to agency discretion); Griffin v. Dept. of Agriculture,

2 MSPB 335,336-37 (1980) (Board lacks jurisdiction to review discretionary considerations

underlying legitimate management reason for RIF).

x

See also Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281,

285 (1974); Amer. Optometric Ass'n v. FTC, 626 F.2d 896, 905 (D.C. Cir. 1980); Howard

v. United States, No. Civ. LV-77-219 RDF (D. Nev. July 3,1980) (court reviewing federal

employee removal considers "whether the agency decision was based on consideration of

the factors relevant to a reasoned determination" of "the appropriateness of removal as

328
neous," i.e., a determination "is 'clearly erroneous* when although there

is evidence to support it, the [Board]... is left with the definite and

firm conviction that a mistake has been committed."57

Therefore, in reviewing an agency-imposed penalty, the Board must

at a minimum assure that the Overton Park criteria for measuring arbitrariness or capriciousness have been satisfied. In addition, with greater

latitude than the appellate courts are free to exercise, the Board like

its predecessor Commission will consider whether a penalty is clearly

excessive in proportion to the sustained charges, violates the principle

of like penalties for like offenses, or is otherwise unreasonable under

all the relevant circumstances. In making such determination the Board

must give due weight to the agency's primary discretion in exercising

the managerial function of maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to assure that managerial judgment has been

properly exercised within tolerable limits of reasonableness.

Before turning to matters which may be pertinent in determining

whether the agency's selection of a penalty was based on consideration

of the relevant factors, it seems advisable to address one further point

which has been a source of much semantic muddle. The appropriateness

of a particular penalty is a separate and distinct question from that of

whether there is an adequate relationship or "nexus" between the grounds

for an adverse action and "the efficiency of the service." The establishment of such a relationship between the employee's conduct and the

efficiency of the service, while adequate to satisfy the general requirement of Section 7513(a) that no action covered by Subchapter II of

Chapter 75 may otherwise be taken,58 "is not sufficient to meet the

statutory requirement that removal for cause promote the efficiency of

the service." Howard v. United States, No. Civ. LV-77-219 RDF (D.

Nev. July 3, 1980) (Mem. Order at II).59 The appropriateness of a particular Subchapter II penalty, once the alleged conduct and its requisite

general relationship to the efficiency of the service have been established, is "yet a third distinct determination." Young v. Hampton, 568

F.2d 1253, 1264 (7th Cir. 1977).

a sanction") (Mem. Order at 9); Steadman v. SEC, 603 F.2d 1126, 1140 (5th Cir. 1979),

affd, 49 U.S.L.W. 4174 (U.S., Feb. 25, 1981) (when Commission imposes most drastic

sanction, "At the least the Commission specifically ought to consider and discuss... the

factors that have been deemed relevant to the [penalty]. . ..").

'"Hernandez v. United States, 636 F.2d 704, 707 (D.C. Cir. 1980), quoting United States

v. Gypsum Co., 333 U.S. 364, 395 (1948).

"Subchapter II of Chapter 75, Title 5, applies to a removal, a suspension for more than

14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less. 5 U.S.C.

7512. The "efficiency of the service" requirement applies to the determination of whether

any such action may be taken, as well as to the particular action. 5 U.S.C. 7513(a).

^See also Tucker v. United States, 624 F.2d 1029, 1033-34 (Ct. CL 1980); Phillips v.

Bergland, 586 F.2d 1007, 1010-11 (4th Cir. 1978), quoting Young v. Hampton, 568 F.2d

1253, 1257 (7th Cir. 1977).

329
Indeed, under some circumstances "an unduly harsh penalty can effectively ruin [an agency's] . . . goal of deterrence," Power v. United

States, supra, 531 F.2d at 509. Before it can properly be concluded that

a particular penalty will promote the efficiency of the service, it must

appear that the penalty takes reasonable account of the factors relevant

to promotion of service efficiency in the individual case.60 Thus, while

the efficiency of the service is the ultimate criterion for determining

both whether any disciplinary action is warranted and whether the

particular sanction may be sustained, those determinations are quite

distinct and must be separately considered.

B. Relevant Factors in Assessing Penalties

A well developed body of regulatory and case law provides guidance

to agencies, and to the Board, on the considerations pertinent to selection of an appropriate disciplinary sanction. Much of that guidance is

directed to the fundamental requirement that agencies exercise responsible judgment in each case, based on rather specific, individual

considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.61

 OPM's rules on this

subject, like those of the Commission before it, emphasize to agencies

that in considering available disciplinary actions, "There is no substitute

for judgment in selecting among them."62

Further, 0PM has specifically counseled agencies that:63

Any disciplinary action demands the exercise of responsible judgment so that an employee will not be penalized out of proportion

to the character of the offense; this is particularly true of an employee who has a previous record of completely satisfactory service.

An adverse action, such as suspension, should be ordered only after

a responsible determination that a less severe penalty, such as

admonition or reprimand, is inadequate.

. . . Agencies should give consideration to all factors involved when

deciding what penalty is appropriate, including not only the gravity

of the offense but such other matters as mitigating circumstances,

^Congress has declared that merit system principles should be adhered to in Federal

personnel management "in order to provide the people of the United States with a competent, honest, and productive Federal work force . . . and to improve the quality of

public service." Sec. 3(1) of the Reform Act, 5 U.S.C. 1101 note.

61See 5 C.F.R. 731.202(c); Howard v. United States, No. Civ. LV-77-219 RDF (D. Nev,

July 3, 1980) (Mem. Order at 10); Masino v. United States, 589 F.2d 1048, 1055-56 (Ct.

Cl. 1978).

^Federal Personnel Manual, ch. 751, subch. l-2a (Dec. 21, 1976).

^Id., subch. l-2b, l-2(c)(2). Regardless of whether these provisions of the Federal

Personnel Manual are "mandatory" or "precatory," see Doe v. Hampton, supra, 566 F.2d

at 281, many such provisions have been made mandatory by implementing regulations of

the individual agencies. In any event, in reviewing any particular agency action the Board

may consider whether the agency has acted reasonably in light of such 0PM guidance.

330
the frequency of the offense, and whether the action accords with

justice in the particular situation.

Section 7513(b)(4) of Title 5 requires that written agency decisions

taking adverse actions must include "the specific reasons therefor."

While neither this provision nor OPM's implementing regulation, 5 C.F.R.

752.404(f), requires the decision notice to contain information demonstrating that the agency has considered all mitigating factors and has

reached a responsible judgment that a lesser penalty is inadequate, a

decision notice which does demonstrate such reasoned consideration may

be entitled to greater deference from the Board as well as from the

courts.64 Moreover, aggravating factors on which the agency intends to

rely for imposition of an enhanced penalty, such as a prior disciplinary

record, should be included in the advance notice of charges so that the

employee will have a fair opportunity to respond to those alleged factors

before the agency's deciding official,65 and the decision notice should

explain what weight was given to those factors in reaching the agency's

final decision.

Court decisions and 0PM and Civil Service Commission issuances

have recognized a number of factors that are relevant for consideration

in determining the appropriateness of a penalty. Without purporting to

be exhaustive, those generally recognized as relevant include the following:66

u

See Democratic Senatorial Campaign Committee v. FEC, Dkt. No. 80-2074 (D.C.

Cir. Oct. 9, 1980) (agency's entitlement to deference "depends upon the quality of its

determinations. Factors to be considered include 'the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements' ") (Slip. Op. at 8-9); Boyce v. United States, 543 F.2d 1290, 1294-95 (Ct.

Cl. 1976) ("where the agency fails to give reasons, the court cannot accord the usual

deference to the exercise of administrative discretion"); Cf. Steadman v. SEC, supra,

503 F.2d at 1137,1139 (when Commission imposes most drastic sanction, it must articulate

carefully the grounds for its decision, including an explanation of why a lesser sanction

vill not suffice).

ffiSince 5 C.F.R. 752.404(f) forbids the agency from considering any reason not specified

n the advance notice of proposed action, agencies must consider in preparing the advance

lotice required by Section 7513(b)(l) all of the factors on which they intend to rely in any

ronsequent decision. Cf. Albert v. Chafee, 571 F.2d 1063, 1066 (9th Cir, 1977); lannarelti

'. Morton, 327 F.Supp. 873, 882 (E.D. Pa. 1971), affd, 463 F.2d 179 (3d Cir. 1972). Of

ourse, this does not require designation in the notices of all circumstances that could

onceivably be relevant to the penalty; for example, if an appellant contends that a penalty

xceeds that imposed upon other employees in like circumstances, the agency would

emain free to present evidence to rebut such contention notwithstanding its failure to

ave recited such information in its advance or final notices. Cf. Cafferello v. Civil Service

•ommission, 625 F.2d 285, 288 (9th Cir. 1980).

^See generally 5 C.F.R. 731.202(c); Federal Personnel Manual, ch. 751, subch. 1-2

)ec. 21,1976); CSC Board of Appeals and Review, Memorandum No. 2, supra, note 47;

rancisco v. Campbell, 625 F.2d 266, 269-70 (9th Cir. 1980); Howard v. United States,

o. Civ. LV-77-219 RDF (D. Nev. July 3,1980) (Mem. Order at 9); Giles v. United States,

3 F.2d 647, 650-51 (Ct. Cl. 1977); Boyce v. United States, 543 F.2d 1290, 1294 (Ct. Cl.

76). See also Tucker v. United States, 624 F.2d 1029, 1034 (Ct. Cl. 1980); Byrd v

impbell, 591 F.2d 326, 331 (5th Cir. 1979); Clark v. United States, 162 Ct. Cl. 477, 485

163).

331
(1) The nature and seriousness of the offense, and its relation to the

enployee's duties, position, and responsibilities, including whether the

offense was intentional or technical or inadvertent, or was committed

maliciously or for gain, or was frequently repeated;

(2) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of

the position;

(3) the employee's past disciplinary record;

(4) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

(5) 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;

(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;

(7) consistency of the penalty with any applicable agency table of

penalties;

(8) the notoriety of the offense or its impact upon the reputation of

the agency;

(9) the clarity with which the employee was on notice of any rules

that were violated in committing the offense, or had been warned about

the conduct in question;

(10) potential for the employee's rehabilitation;

(11) mitigating circumstances surrounding the offense such as unusual

job tensions, personality problems, mental impairment, harassment, or

bad faith, malice or provocation on the part of others involved in the

matter; and

(12) the adequacy and effectiveness of alternative sanctions to deter

such conduct in the future by the employee or others.67

Not all of these factors will be pertinent in every case, and frequently

in the individual case some of the pertinent factors will weigh in the

appellant's favor while others may not or may even constitute aggravating circumstances. Selection of an appropriate penalty must thus

involve a responsible balancing of the relevant factors in the individual

case. The Board's role in this process 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; such an approach

would fail to accord proper deference to the agency's primary discretion

in managing its workforce. Rather, the Board's review of an agencyimposed penalty is essentially to assure that the agency did conscien67

 Some of the factors listed above may be pertinent to other issues as well as to penalty

selection, such as the alleged relationship of the appellant's conduct to the efficiency of

the service or affirmative defenses of various kinds. Care should be taken to distinguish

issues relating to whether any sanction may be imposed from those relating to whether

a particular penalty may be sustained, even though the same facts may sometimes be

pertinent to both types of issues.

332
tiously consider the relevant factors and did strike a responsible balance

within tolerable limits of reasonableness. Only if the Board finds that

the agency failed to weigh the relevant factors, or that the agency's

judgment clearly exceeded the limits of reasonableness, is it appropriate

for the Board then to specify how the agency's decision should be corrected to bring the penalty within the parameters of reasonableness.

In considering whether the agency's judgment was reasonably exercised, it must be borne in mind that the relevant factors are not to

be evaluated mechanistically by any preordained formula. For example,

the principle of "like penalties for like offenses" does not require mathematical rigidity or perfect consistency regardless of variations in circumstances or changes in prevailing regulations, standards, or mores.

This consideration is redolent of equal protection concepts, also reflected

in the merit system principle calling for "fair and equitable treatment"

of employees and applicants in all aspects of personnel management.68

As such, this principle must be applied with practical realism, eschewing

insistence upon rigid formalism so long as the substance of equity in

relation to genuinely similar cases is preserved.69 0PM has required

that agencies "should be as consistent as possible" when deciding on

disciplinary actions, but has also cautioned that "surface consistency

should be avoided" in order to allow for consideration of all relevant

factors including "whether the action accords with justice in the particular situation."70

 Similarly, agency tables of penalties should not be

applied so inflexibly as to impair consideration of other factors relevant

to the individual case.71

Lastly, it should be clear that the ultimate burden is upon the agency

to persuade the Board of the appropriateness of the penalty imposed.

This follows from the fact that selection of the penalty is necessarily an

element of the agency's "decision" which can be sustained under Section

K

5 U.S.C. 2301(b)(2). See also Exec. Order 9830 of Feb. 24, 1947, § 01.2(d), 3 C.F.R.

608 (1943-1948 Comp.), which provides: "The [Civil Service] Commission shall prescribe

procedures to be followed by agencies in connection with removals, demotions, and suspensions in the competitive service which will insure equitable and uniform treatment to

employees against whom adverse action is proposed."

""The Supreme Court has recently observed that, "The equal protection obligation

imposed by the Due Process Clause of the Fifth Amendment is not an obligation to provide

the best governance possible." Schweiker v. Wilson, 49 U.S.L.W. 4207,4209 (U.S., Mar.

4, 1981).

"Federal Personnel Manual, ch. 751, subch. l-2c(l), (2) (Dec. 21, 1976) (original emphasis).

11

 Id., subch. l-2c(3). A penalty may be excessive in a particular case even if within the

range permitted by statute or regulation. Power v. United States, 531 F.2d 605, 507-608

(Ct. Cl. 1976), cert, denied, 444 U.S. 1044 (1980); Rifkin v. United States, 209 Ct. Cl.

566, 584-85 (1976). However, a penalty grossly exceeding that provided by an agency's

standard table of penalties may for that reason alone be arbitrary and capricious, even

though such a table provides only suggested guidelines. Power, supra; Graver v. United

States, 200 Ct. Cl. 337, 353 (1973); Daub v. United States, 292 F.2d 895, 897 (Ct. Cl.

1961); Cuiffo v. United States, 137 F.Supp. 944, 950 (Ct. Cl. 1955).

333
7701(c)(l) only if the agency establishes the facts on which that decision

rests by the requisite standard of proof. The deference to which the

agency's managerial discretion may entitle its choice of penalty cannot

have the effect of shifting to the appellant the burden of proving that

the penalty is unlawful, when it is the agency's obligation to present all

evidence necessary to support each element of its decision.72 The selection of an appropriate penalty is a distinct element of the agency's

decision, and therefore properly within its burden of persuasion, just

as its burden includes proof that the alleged misconduct actually occurred and that such misconduct affects the efficiency of the service.

See Young v. Hampton, supra, 568 F.2d at 1264.

In many cases the penalty, as distinct from the underlying conduct

alleged by the agency, will go unchallenged and need not require more

than prima facie justification. An agency may establish a prima facie

case supporting the appropriateness of its penalty by presenting to the

Board evidence of the facts on which selection of the penalty was based,

a concise statement of its reasoning from those facts or information

otherwise sufficient to show that its reasoning is not on its fact inherently

irrational, and by showing that the penalty conforms with applicable

law and regulation. When no issue has been raised concerning the penalty, such a prima facie case will normally suffice to meet also the

agency's burden of persuasion on the appropriateness of the penalty.

However, when the appellant challenges the severity of the penalty, or

when the Board's presiding official perceives genuine issues of justice

or equity casting doubt on the appropriateness of the penalty selected

by the agency,73 the agency will be called upon to present such further

evidence as it may choose to rebut the appellant's challenge or to satisfy

the presiding official.74

Whenever the agency's action is based on multiple charges some of

which are not sustained, the presiding official should consider carefully

whether the sustained charges merited the penalty imposed by the

agency.75 In all cases in which the appropriateness of the penalty has

raFor this reason we reject the contention, urged upon us by NTEU, that the appropriateness of a particular penalty is a question of law which arises under 5 U.S.C.

7701(c)(2)(C). Such a conclusion would place the burden upon the appellant to prove the

penalty unlawful, since Section 7701(c)(2) deals with affirmative defenses. See Parker v.

Defense Logistics Agency, 1 MSPB 489, 492, 495-96 (1980). Moreover, while it is possible

for a penalty to be so disproportionate to the offense as to be "illegal," Albert v. Chafee,

571 F.2d 1063, 1068 (9th Cir. 1978); Jacobowitz v. United States, 424 F.2d 555, 563 (Ct.

Cl. 1970), that is merely another way of saying that imposition of such a penalty is arbitrary

and constitutes an abuse of discretion. The appropriateness of a penalty is a matter of

judgment and discretion, not a question of law per se. See text and authorities cited at

note 40, supra.

nGf. Parker v. Defense Logistics Agency, 1 MSPB 489, 496 n. 9 (1980).

74C/. Losure v. ICC, 2 MSPB 361, 366 (1980).

"^See CSC Board of Appeals and Review, Memorandum No. 2, note 47 supra, § 3a;

Francisco v. Campbell, 625 F.2d 266 (9th Cir. 1980); Meekan v. Macy, 425 F,2d 472 (D.C.

Dir. 1969) (en bane).

334
been placed in issue, the initial decision should contain a reasoned explanation of the presiding official's decision to sustain or modify the

penalty, adequate to demonstrate that the Board itself has properly

considered all relevant factors and has exercised its judgment responsibly.

III. APPLICATION TO APPELLANTS

We turn now to the application of these standards to the cases of the

individual appellants. In doing so, we shall discuss the relevant facts of

each case and the arguments of the parties.

A. Curtis Douglas v. Veterans Administration

Appellant Douglas was employed by the Veterans Administration as

a Supply Clerk Dispatcher, GS-4. He was removed from the agency for

being absent without leave for thirty minutes, for being away from his

assigned duty station without permission, and for selling his employment

services to a physically handicapped employee. These charges all arose

out of events occurring on January 14, 1979. In selecting the penalty,

the agency considered four past disciplinary actions: (1) a February 25,

1977 admonishment for eight hours of being AWOL; (2) a June 3, 1977

reprimand for failure to report for duty on May 28, 1977 and four hours

of being AWOL on June 2, 1977; (3) a five-day suspension of June 28,

1977 for a 45-minute period of AWOL; and (4) a 20-day suspension of

October 2, 1978 for another period of AWOL.

Upon appeal to the Board, the appellant declined a hearing and the

presiding official sustained the action based on the evidence in the record. In his initial decision the presiding official described the facts

surrounding the conduct which resulted in appellant's removal, stating:

Here, the record reveals that on January 14, 1979 the appellant

was assigned the job of SPD Dispatcher with a tour of duty from

8:00 a.m. to 4:30 p.m. and that at approximately 9:10 a.m. the

telephone at the appellant's dispatch station rang several times and

in his absence was finally answered by the SPD Preparation Area

Supervisor, Mr. Edward L. Regan, who, after taking a request for

supplies and arranging for their deliverance, became aware that

the appellant was absent from his work station without permission.

In the meantime, the Ward Supply Clerk Supervisor, Ms. Margaret

B. Tho ,s, was trying to contact the appellant on several occasions

at his '..-rk site, the Dispatch Office, between 9:00 a.m. and 9:35

a.m. from the wards by use of the executone without success. Consequently, at 9:35 a.m., she asked Mr. Regan of the appellant's

whereabouts only to learn that Mr. Regan did not know since the

appellant had not requested permission to leave the work station.

Thereafter, Ms. Thomas found the appellant on the sixth floor stocking nurservers for physically handicapped Supply Clerk Richard B.

Eckert from whom, according to Mr. Eckert, the appellant has

335
solicited $5.00 in payment for helping him do his work and to which

the appellant offered that he needed the money.

The presiding official found, after carefully considering appellant's

argument to the contrary, that the agency had proven the above facts

by a preponderance of the evidence. The record does not contain any

evidence which would cause us to change those factual determinations.

Appellant contended that the penalty was too severe. However, he

did not explain why he believed the penalty to be too severe, nor did

he introduce any evidence to support this contention. In the absence of

any specific explanation of this contention from the appellant, we will

consider whether, after relevant factors are considered, the penalty of

removal was disproportionate to the seriousness of the offense.

The offense in this case was serious. It had a direct impact on the

agency's ability to accomplish its mission. According to the agency,

appellant's position was "critical to the process of furnishing vital supplies and equipment for emergency as well as routine patient care to all

areas of the Medical Center." By being absent from his post, appellant

created a situation which could have resulted in serious consequences

to a patient who needed equipment or supplies immediately. The seriousness of the offense is compounded by the fact that appellant's absence

was intentional and was occasioned by his desire for personal gain.

The record also shows that appellant has been disciplined for unauthorized absence on four previous occasions. This record of progressive

discipline demonstrates that appellant was clearly on notice that unauthorized absence from his duty station was a serious offense. It also

demonstrates that sanctions less severe than removal have not been

successful in curbing appellant's misconduct. On the basis of the above

findings, we conclude that the removal penalty was not arbitrary or

unreasonable in light of all the circumstances and constituted an appropriate penalty.

Accordingly, the removal action is AFFIRMED.

B. Joseph E. Cicero v. Veterans Administration

Appellant Cicero was removed from his position as a Housekeeping

Aide, effective July 13,1979, at the Franklin Delano Roosevelt Hospital,

Montrose, New York, for failure to comply with the instructions of his

supervisor to remove boxes from a hallway which were considered to

be hazardous to elderly patients. Appellant's prior disciplinary record,

consisting of four similar incidents involving failure to perform his work

in a timely fashion, was considered by the agency. On appeal, appellant

testified that although his supervisor had ordered him to remove several

large boxes, the boxes had already been removed by another Housekeeping Aide. The presiding official found the appellant's testimony less

credible than the supervisor's and concluded that the preponderance of

evidence supported the reasons for the action. The presiding official also

found that removal for failure to carry out instructions relating to the

336
well-being of the patients "constitutes such cause as will promote the

efficiency of the service."

Appellant argues that the lack of any discipline against him for a

number of months prove that the removal sanction was not for such

cause as will promote the efficiency of the service. The agency argued

that in light of a pattern of disregard for supervisory authority reflected

in all of appellant's incidents of misconduct, his removal was "patently"

for the efficiency of the service.

The instant charge, standing alone, although significant, would not

warrant removal because the agency failed to establish the likelihood

of injury of patients as a result of appellant's failure to timely comply

with his orders. However, the agency has demonstrated that its imposition of lesser penalties in the past has failed to correct appellant's

insubordination. Namely, between June 1978 and January 1979 appellant was (1) suspended for 10 working days for deliberate failure or

unreasonable delay in carrying out instructions; (2) issued a letter of

reprimand for disobeying a direct order; (3) issued a letter of reprimand

for failing to complete a work assignment; and, (4) admonished for willful

idleness. This record of progressive discipline also demonstrates that

appellant was on notice regarding the consequences of his failure to

follow the instructions of his supervisor.

Appellant's argument that he had not been disciplined for a number

of months is relevant in considering the appropriateness of the penalty.

However, in this instance appellant's argument is not persuasive due

to the fact that this was appellant's fourth offense involving failure to

follow instructions in two years, with the suspension occurring only

three months prior to notice of the proposed removal. Thus in the absence of any other relevant argument from the appellant, the question

turns on the presence of other mitigating circumstances in the record.

The record shows that appellant's performance was otherwise satisfactory and that he had completed five and a half years of service. However

these factors are outweighed by the appellant's continued insubordination, and the fact that such continued insubordination indicates little

likelihood of potential rehabilitation. An agency need not exercise forebearance indefinitely.

On the basis of the above findings, we conclude that the removal

penalty was not arbitrary or unreasonable in light of all the circumstances.

C. Douglas C. Jackson v. Department of the Air Force

Appellant Jackson was employed as a Sheet Metal Worker-Helper

(Aircraft) with the Department of the Air Force. He was removed from

his position for "deliberate misrepresentation" because he had submitted

false evidence in order to prove college nightclass enrollment so that he

might obtain a day-shift assignment. In addition, four elements of appellant's past disciplinary record were considered by the agency in determining the severity of the penalty. In his initial decision, the presiding

337
official found that a preponderance of the evidence of record supported

the charge of deliberate misrepresentation. He further found that the

appellant failed to show that the removal penalty exceeded the penalty

listed in the table of penalties, and that the agency's action was neither

arbitrary nor capricious, but was taken for cause such as would promote

the efficiency of the service. Accordingly, the agency's action was affirmed.

The agency did not allege that the misrepresentation impacted on

appellant's job performance but in determining the severity of the penalty, the agency also considered the appellant's past disciplinary record

which included a letter of reprimand for "wanton disregard of directives"

involving parking without a valid permit on four occasions; a one-day

suspension for being AWOL and failing to request leave in accordance

with established procedures; a letter of reprimand for being AWOL and

failing to request leave in accordance with established procedures; and

a letter of reprimand for the offense of deliberate misrepresentation for

driving on base with an unauthorized base registration decal.

Appellant did not deny having engaged in the charged offense, but

requested consideration of his age (22) and the fact that he was the sole

support of his wife and child. Appellant also asked to be put on a trial

period, assured the agency of no further wrongdoing, and requested a

lesser penalty. Notwithstanding these pleas in mitigation, the agency

determined that removal would promote the efficiency of the service.

The likelihood of rehabilitation is the most persuasive of appellant's

pleas in support of mitigation. The hardship caused by removal is not

unique in most cases. Similarly, unless the employee's age is somehow

connected to the offense, failure to consider age would not make an

agency's selection of a particular penalty arbitrary or unreasonable.76

The likelihood of rehabilitation must be viewed in light of appellant's

past actions. Under the circumstances, appellant's promise that he would

not engage in future prohibited conduct is insufficient to outweigh other

relevant factors which tend to indicate otherwise. This was not appellant's first offense. Appellant frequently disregarded agency rules in

committing various offenses. An agency is entitled to expect its employees to adhere to reasonable directives and to discipline them for

failure to do so. Appellant had repeatedly been warned about such

conduct, and due to the number of disciplinary actions during two years

of employment, the agency could reasonably conclude that the likelihood

of rehabilitation was too remote to warrant mitigating the penalty.

Accordingly, we find that the agency did not act arbitrarily in its

decision not to mitigate this case, and that the penalty of removal was

not unreasonable.

780f course if a particular penalty was selected as a result of age discrimination, the

penalty could not be affirmed. 5 U.S.C. 2302(b)(l) and 5 U.S.C. 7701(c)(2)(B).

338
D, James K. Anderson v. Department of the Air Force

At the time of his removal on August 10, 1979, appellant, a veteran,

had been employed by the Department of the Air Force at Robins Air

Force Base, Georgia, as a Packer, WG-6, for most of his 24 years of

civilian government service. He was removed for failure to properly

request leave between May 31 and June 20, 1979, a total of 15 working

days, when he was absent from duty due to chronic foot problems from

which he had been suffering since 1975.

In reaching its decision to remove him, the agency considered two

previous ten-day suspensions which also related to absence arising from

appellant's medical condition.77 The agency considered no other factors

in its decision to remove appellant.78 The agency was aware of appellant's

medical condition, and did not charge him with unauthorized absence

or absence without leave (AWOL).

Appellant did not deny that he was absent on the days in question,

but did deny that he had failed to properly request leave. The presiding

official sustained the charges, and found that removal would promote

the efficiency of the service. However, he did not explain his reasons

for the latter conclusion.

Under the particular circumstances of this case, we find that the

agency has not carried its burden of demonstrating that removal was

reasonable. Our decision in this case is based on the unique arrangement

which the agency had with the appellant with respect to the manner in

which appellant was required to request leave for medical reasons, as

is explained in detail below.

The record reveals that for some time prior to 1976, the appellant,

whose duties required standing on his feet for lengthy periods of time,

had been experiencing considerable difficulty with his feet. In May of

1976 he underwent a foot operation which appears to have done little

to alleviate this troubling condition. Substantially all of appellant's absences after 1976 were related to this medical problem.79

When appellant was absent from work, it was his practice to send a

short letter to his supervisor requesting that he be placed on sick or

annual leave. Appellant's supervisor testified that appellant was "real

good" about reporting his absences by letter, and that if the letter did

"Appellant was suspended in October 1977 for unauthorized absence on seven working

days, and in October 1976 for failing to properly request leave on nine days. Not considered

by the agency was a 5-day suspension in July 1975 for failure to properly request leave

on six days, and a reprimand in March 1975 for failure to properly request leave on three

days. The record is devoid of any other evidence of misconduct by appellant during his

lengthy government service.

'''The agency originally stated it would present testimony from the proposing and deciding officials to establish their reasons for selection of the penalty of removal, but these

witnesses were not called at the hearing.

79Although the record indicates that the agency had not modified appellant's duties to

accommodate his medical problems, it also suggests that the agency was very tolerant of

appellant's frequent absence due to his foot condition.

339
not come in on the day of the absence, it would always appear a day or

two later. (Tr 9). He also testified that if appellant did not send a letter,

appellant would bring in a doctor's certificate, and that he had never

placed appellant in an AWOL status (Tr 7). The agency did not offer

evidence of any regulations demonstrating a contrary method for requesting leave, nor did it suggest that the practice followed by appellant

was unsatisfactory. Therefore we conclude that the practice established

by appellant and his supervisor was acceptable to the agency. It is

important to note, however, that a consequence of this practice was

that the agency was unable to determine in advance whether the appellant would be absent on any particular day.

On May 25, 1979, appellant had a conversation with his second level

supervisor80 during which he indicated that he was going to see his

doctor that day because of pain in his feet, and that he was under

medication. Appellant reported for work the following day, but experienced a great deal of pain in his feet. The 27th and 28th of May were

appellant's days off. Appellant failed to return to work until June 21,

but he did send letters to his supervisor on May 29 and May 30 requesting

leave for those two days. In the letter of May 30, appellant stated that

his absence was due to his foot problems. Appellant did not send the

agency any letters requesting leave for his subsequent absences; consequently, he failed to follow the established practice for reporting his

absence. The agency charged appellant with failure to properly request

leave for each working day he was absent except for May 29 and 30.

Sometime after his return to work on June 21st, appellant provided a

doctor's certificate which appears to address appellant's problems only

on May 25th. Although appellant contended that the agency should have

realized his absences after May 30 were also due to his foot problems,

and that his letter of May 30 was sufficient to cover him for the remaining

time, he has also admitted that he had no good reason for his subsequent

failure to contact the agency.

The agency has, however, presented no evidence or argument to

establish the impact of appellant's failure to properly request leave on

the accomplishment of the agency mission. Under the more common

practice of requiring an employee to call in as soon as he or she knows

of an impending absence, an agency has some advance notice in which

to plan for the replacement of that worker. Consequently, the disruption

to the orderly process of accomplishing the agency's work upon failure

to adhere to the proper method requesting leave is readily apparent

under such circumstances. Such is not the case here. The agency could

not reasonably expect to know that appellant would be absent in advance, nor would it know the reasons for that absence, until two or

three days after it had occurred. In the absence of any readily apparent

80Apparently, appellant's immediate supervisor was on leave and it was this second

level supervisor who marked appellant's time cards for the period through June 20,1979.

340
adverse impact on the agency, we conclude that the seriousness of the

offense must be discounted. In drawing this conclusion, we emphasize

that appellant was not charged with unauthorized absence or absence

without leave. The serious adverse impact on the agency's mission resulting from an authorized absence of some three weeks is self-evident,

and, in the absence of any rebuttal from the appellant, an agency need

not expect to present detailed evidence concerning that impact. Had

the agency established that appellant had been AWOL for the time here

in question, our conclusion with respect to the appropriateness of removal might well be different.

This, however, does not mean that the agency may not discipline the

appellant for failing to adhere to the established procedures for reporting

his absences. An agency is entitled to expect its employees to adhere

to its reasonable directives, and to discipline them for failure to do so.

The appellant has clearly failed to do so here, and the record shows that

he has violated these procedures in the past. The severity of the discipline under such circumstances should be determined in light of the

number of past violations of the directive and the importance to the

agency mission of carrying out the directive. The record indicates that

appellant failed to adhere to the established procedures on four separate

occasions, and has been suspended for a total of 15 days, but does not

indicate the importance to the agency of carrying out the directives.

The record also indicates that appellant has had a long career with the

government, which has been unblemished with the exception of the

disciplinary actions which relate to his medical condition. Moreover,

since the agency has presented no evidence indicating that appellant's

performance on the job was deficient, the appellant is entitled to the

presumption that his performance has been satisfactory. In light of these

considerations, we find that the penalty of removal was unreasonable

and that a suspension of 30 days for the instant violation of agency

procedures is appropriate. Accordingly, the agency action is REVERSED and the agency is hereby ORDERED to cancel the removal

action and substitute in its place a thirty-day suspension.

E. Luis A. Jimenez v. Army

Appellant, a Motor Vehicle Dispatcher, GS-4, employed by the Department of the Army at Fort Buchanan, Puerto Rico,81

 was removed

for unauthorized use of a government-owned vehicle. He admits the

facts underlying the charges as set forth below, but contends that the

penalty is too severe.

On the morning of June 4, 1979, the transportation officer for whom

appellant worked discovered that one of the government vehicles was

absent from its normal parking place but was not signed out to anyone.

81The record does not indicate how long the appellant, a veteran, had been employed

in this capacity, but he had worked at Fort Buchanan for four years. His service computation date was January 2, 1968.

341
Upon inquiry to the military police, he learned that appellant had been

seen leaving the NCO Club with three women in the vehicle at approximately 1:45 a.m. on Saturday, June 2, 1979. When questioned by the

guard at the gate, appellant had produced a dispatch ticket, stated that

the women were scheduled to perform at a show on the post on Sunday,

and that he was taking them to their downtown hotel.

Appellant was off duty from 3:30 p.m. on Friday, June 1, 1979, until

7:30 a.m. on Tuesday, June 5, 1979, and was not authorized to use a

government vehicle between those hours. Appellant failed to report as

scheduled on the 5th, but called in later that day to report that he had

been involved in an accident while driving the government vehicle, on

June 4th, at approximately 7:30 p.m., had gone to the hospital, and

needed a wrecker to tow the car back to the motor pool.

In deciding to remove the appellant, the agency considered his written

and oral pleas in mitigation, which included the claim that this was the

first offense as a federal employee; that he was not responsible for the

accident;82 that he wanted to make the federal service his career and

removal would prevent him from doing so; that he had four children to

support, was heavily in debt and could not afford to lose his job; that

his work had always been satisfactory and he was a dedicated employee;

that his four years of good service should be considered in selecting the

penalty and he was proud to work for the federal government; and that

a lesser penalty would benefit both him and the service. We find that

all the mitigating factors raised by the appellant were proper matters

for the agency to consider in selecting the penalty. Notwithstanding

these considerations, the agency determined that removal would promote the efficiency of the service. The deciding official gave appellant

the following explanation for that decision.

In your verbal reply you told me that the allegations in the Proposed Notice of Removal were true, specifically, that you were

guilty of unauthorized use of government vehicle while serving as

a Motor Vehicle Dispatcher. You reiterated the fact that you were

aware of the provisions against unauthorized use of government

property and that you were guilty of the charge . . . I am convinced

that you were aware of the "Official Use" requirement contained

in Army Reg. 600-50, and that you failed to observe that regulation ... As a Motor Vehicle Dispatcher you are entrusted with

insuring that the government's interests are protected in the area

of vehicle usage. You were held responsible for approving or disapproving requests for motor transportation. You are expected to

report violations of "Official Use" to higher level officials for corrective action. You occupy a position of trust and by taking a vehicle

during the period specified in the proposed notice for your own

ffiThe agency action was not based on the accident, and we agree with the agency that

this consideration is irrelevant.

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purposes which included driving three people from the NCO Club

to their downtown hotel, you have violated that trust placed upon

you. In light of that trust inherent in your position the unauthorized

use of government property is considered a major offense. Removal

is warranted for this offense and falls with the Department of Army,

Table of Penalty Guidelines . . . You intentionally ignored AR 600-

50, Standard of Conduct, which is a regulation prescribed by competent authority. Within that regulation is a provision prescribing

when government property can be used. You chose not to adhere

to the "Official Use" requirement contained in AR 600-50 which I

consider much more serious than accidentally forgetting to observe

an order or regulation . . .

Appellant appealed the removal to the New York Field Office of the

Board, but did not request a hearing. His arguments were limited to

the question of the severity of the penalty. In its response to appellant's

petition, the agency contended that the appellant had proven himself

untrustworthy in the performance of his duties and to retain him under

those circumstances would not promote the efficiency of the service.

The presiding official found that removal was appropriate under the

circumstances, and affirmed the removal.

In response to our briefing order, the appellant reiterated the factors

he considered relevant to mitigation which he had set forth to the agency

and the presiding official, but made no attempt to explain why, in light

of his conduct, a lesser penalty would be appropriate. The agency argued

that in cases such as this, where the relationship between the employee's

conduct and the adverse impact on the accomplishment of the agency

mission is obvious on its face, it need not present evidence concerning

that relationship.

We agree with the general proposition stated by the agency. However, whether that relationship is "obvious" depends to a great extent

on the background and knowledge of the person to whom such an argument is addressed. Nor is it self-evident that the appellant was responsible to approve or disapprove vehicle requests, to report violations

of the "Official Use" regulations to his supervisor, or that he was aware

of the contents of those regulations. Such matters are, however, important considerations in determining whether removal is appropriate

under the circumstances of this case, and the agency bears the burden

of introducing evidence to establish these facts. If it had done so, the

agency would then be in a position to argue that appellant's improper

conduct casts grave doubt upon his ability to faithfully discharge his

duties, that his misconduct was such that the agency could no longer

reasonably rely on his ability to properly carry out his duties in the

future, and that removal would therefore be warranted.

The agency has not, however, introduced any evidence to establish

the nature of appellant's duties and responsibilities or his background

and knowledge. The only indication of the nature of appellant's duties

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and responsibilities is found in the rationale utilized by the deciding

official's decision to effectuate appellant's removal. Accordingly, we are

unable to determine whether the alleged facts underlying the rationale

for the removal penalty are supported by a preponderance of the evidence. In the future, an agency will risk having its selected penalty

reduced, if it does not meet its burden of proof on the underlying factual

issues. However, because the agency's burden has been outlined for the

first time in this decision, it would not serve the interest of justice to

take that course here. Consequently, the presiding official's initial decision sustaining the agency's removal of appellant is VACATED and

the case is REMANDED to the New York Field Office. On remand the

presiding official shall afford the parties the opportunity to introduce

additional evidence on the question of mitigation, including evidence of

the appellant's duties and responsibilities and his awareness of the agency's rules concerning unauthorized use of motor vehicle.

F. John Nodfore and John Dennis v. Department of the Navy

Appellants Nocifore and Dennis were removed for the attempted theft

of a satchel of brass fittings from the Long Beach Naval Shipyard.

According to the agency's Inventory and Identification of Recovered

Evidence, the fittings were worth approximately $600.00. Appellants

did not deny the charged misconduct, either before the agency or the

Board's presiding official. The presiding official of the Board's San Francisco Field Office sustained the charge, and the removal actions were

affirmed. A joint hearing was held incident to their appeals, and their

cases will be considered together in this section.

While the agency has a policy of considering mitigating factors and

imposing the minimum penalty that can be reasonably expected to correct an offending employee, it recognizes that certain misconduct may

warrant removal in the first instance. (CMMI 751.1, Sec. l-2a, December

1975, Agency Exhibit 2.) The Shipyard officially identified the offense

of attempted or actual theft of government property as warranting the

penalty of removal for the first offense, "unless extraordinary mitigating

circumstances exist which would indicate the suitability of a lesser penalty." (NAVSHIPDLBEACH/SUPSHIPNOTE 12750, 26 September

1977, Agency Exhibit 2.) This Notice required that the agency's policy

regarding the offense be "published in the Digest semi-annually and that

all employees are (to be) informed of this policy upon entrance to duty."

We find that the Shipyard clearly articulated and communicated its

policy regarding proven theft-related offenses.

In deciding whether to impose lesser penalties, the agency considered

Mr. Nocifore's 13 years, and Mr. Dennis' 6 years, of good job performance in the Shipyard, an award for meritorious service received by

Mr. Dennis in 1977, the fact that they had no prior disciplinary records,

and the "financial problems" of Mr. Nocifore. The agency did not find

that these factors warranted reductions in the penalties. These decisions

were made in the context of approximately $300,000 worth of losses due

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to theft which the Shipyard claims to suffer annually, (Tr. at 23), and

the Shipyard's need to deter such misconduct.

Appellants did not deny having engaged in the charged misconduct,

but claimed that they were treated disparately as compared with other

employees disciplined for theft-related offenses in the 2-year period

preceding their removals.

We find that the record does not support appellants' contention that

the agency practice was to impose suspensions rather than removals for

theft-related offenses. In each of the six cases cited by the appellants,

removal had been initially proposed. The proposed penalty was effected

in two cases and reduced in four others after consideration of mitigating

factors.

In one case the penalty was reduced because the agency concluded

that the offense was not committed for personal gain; in another there

was insufficient evidence of intent; and in a third the agency reprimanded a temporary employee for taking a jacket which he claimed he

mistakenly picked up. The fifth case referred to by the appellants was

comparable to theirs in its seriousness. A supervisor had utilized his

position to have certain goods made for him by his subordinate employees. His removal was originally proposed but he was ultimately

suspended because the agency concluded, based on his years of good

service, his offer to make restitution, and good character attestations,

that a repeat of the offense was unlikely.83 We do not find that the

agency's consideration of the mitigating factors in the supervisor's case

indicates that appellants were treated disparately. See Jones v. United

States, 617 F.2d 233 (Ct. Cl. 1980). We agree with the presiding official

that the agency could reasonably decide not to reduce the penalty in

the instant cases. As the presiding official noted:

. . . appellant's supervisors did not come forward on his behalf and

although union officials did so they volunteered information about

appellant's personal financial condition rather than his "character";

employees in the cases cited by appellant were more cooperative

[sic] freely providing additional assistance and information to the

agency; and, the others were not shown to be involved in resale

activities whereas the credible evidence indicated appellant intended to convert the property to cash. . . . (Nocifore Initial Decision at 5).

Accordingly, we find that the seeming disparity has been adequately

explained by the agency. The agency has demonstrated that its practice

is to weigh the individual merits and mitigating factors applicable in

each instance of a theft-related offense, to arrive at a penalty resulting

ffiln essence, the agency appears to have determined that there was a good potential

for the employee's rehabilitation. This is a valid mitigating factor which an agency may

consider, See text at notes 66-67, supra.

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from reasoned deliberation of those factors, and that it did so in this

case.84

Theft of government property "carries on its face prejudice to the

service," and is "without question related to the faithful and loyal performance of his duties by an employee. . . ." Phillips v. Berglund, 586

F.2d 1007, 1011 (4th Cir. 1978). The thefts in these cases were serious

offenses. They were intentional misdeeds, motivated by the desire for

personal gain. They were committed despite the clear notice the appellants and other employees received that the agency considered theft

a serious offense. If appellants were not removed they would continue

to have access to government material, and the agency's ability to deter

such conduct by other employees could be lessened. This consideration

is significant in view of the substantial losses the Shipyard has been

suffering through theft. Under all the circumstances in these cases, we

find that the penalties of removal were not arbitrary or unreasonable.

Accordingly, the removal actions of John Nocifore and John Dennis are

AFFIRMED.

This is the final order of the Merit Systems Protection Board in these

appeals.

Appellants are hereby notified of the right to seek judicial review of

the Board's action as specified in 5 U.S.C. 7703. A petition for judicial

review must be filed in the appropriate court no later than thirty (30)

days after appellants' receipt of this order.

For the Board:

RONALD P. WERTHEIM.

ERSA H. POSTON.

RUTH T. PROKOP.

WASHINGTON, D.C., April 10,1981

^Evaluation of the factors pertinent to individual cases of employees charged with

misconduct by the agency precludes mathematical rigidity or perfect consistency. See text

at notes 67-70, supra.

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