MARK J. TARTAGLIA, Petitioner
DEPARTMENT OF VETERANS AFFAIRS, Respondent
for review of the Merit Systems Protection Board in No.
Curtis Bonney, Bonney, Allenberg & O'Reilly, PC,
Virginia Beach, VA, argued for petitioner.
John Singley, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Reginald T. Blades.
Newman, Schall, and Wallach, Circuit Judges.
Wallach, Circuit Judge.
Mark J. Tartaglia appeals a final order of the Merit Systems
Protection Board ("MSPB"), which upheld his removal
from employment with the U.S. Department of Veterans Affairs
("the VA"). See Tartaglia v. Dep't of
Veterans Affairs, No. DC-0752-14-1108-I-1, 2016 WL
2587964, at ¶¶ 1, 16 (M.S.P.B. May 5, 2016).
Because the MSPB abused its discretion when it upheld Mr.
Tartaglia's removal, we vacate and remand.
parties do not dispute the background facts relevant here.
Mr. Tartaglia served as a Supervisory Security Officer and
the Chief of Police at the VA's Veterans Administration
Medical Center in Hampton, Virginia. J.A. 110. The VA proposed
Mr. Tartaglia's removal based on three charges, some with
multiple specifications:(1) "Abuse of Authority" (six
specifications); (2) "Lack of Candor" (two
specifications); and (3) "Misuse of Government
Property" (one specification). J.A. 113-15. The VA's
deciding official rejected Charge 3 as unsubstantiated,
sustained Charge 1 based on five of the six specifications
and Charge 2 based on both specifications, and removed Mr.
Tartaglia from service. See J.A. 107-12; see
also J.A. 81. Mr. Tartaglia subsequently appealed to the
initial decision, an administrative judge ("AJ")
affirmed Mr. Tartaglia's removal. Tartaglia v.
Dep't of Veterans Affairs, No. DC-0752-14-1108-I-1
(M.S.P.B. Oct. 30, 2015) (J.A. 80-94). The AJ found that the
VA failed to prove either of the two specifications of Charge
2 and that it proved only three of the five specifications of
Charge 1. J.A. 81-86. As to the three specifications of
Charge 1, Mr. Tartaglia admitted to one of them-Specification
5. J.A. 85. That specification charged Mr. Tartaglia with
instructing a subordinate to drive him in a government-owned
vehicle to run a personal errand while on duty. J.A. 85.
Although the AJ did not sustain all of the VA's charges
for removal, she concluded that the VA reasonably removed Mr.
Tartaglia based on the three remaining specifications of
Charge 1. J.A. 87-89. Mr. Tartaglia subsequently petitioned
the full MSPB for review of the AJ's initial decision.
Final Order, the MSPB sustained Mr. Tartaglia's removal.
See Tartaglia, 2016 WL 2587964, at ¶ 16.
Although the MSPB found that the VA failed to prove two of
the three remaining specifications of Charge 1, id.
at ¶¶ 6-13, it upheld Mr. Tartaglia's removal
based solely on Specification 5 to Charge 1, id. at
¶¶ 14-16. In support of its conclusion, the MSPB
found that (1) removal fell within the VA's Table of
Penalties for the misconduct in question; (2) Mr.
Tartaglia's "misconduct was particularly serious
because it went beyond merely misappropriating a Government
vehicle, but also included instructing a subordinate to help
him do so"; (3) mitigating factors such as Mr.
Tartaglia's "outstanding work record and lack of
prior discipline" were "temper[ed]" because
Mr. Tartaglia had served with the VA for "only
approximately [four] years"; and (4) Mr. Tartaglia
expressed remorse "only after initially denying the
misconduct to [VA] investigators." Id. at
¶ 16 (citations omitted). The MSPB concluded that these
factors, when considered against the higher standards of
conduct that attach to supervisors and law enforcement
officials like Mr. Tartaglia, supported the VA's decision
to remove Mr. Tartaglia. See id.
instant appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2012).
Standard of Review
affirm an MSPB decision unless, inter alia, it constitutes
"an abuse of discretion." 5 U.S.C. §
7703(c)(1) (2012). The MSPB abuses its discretion when
"the decision is based on an erroneous interpretation of
the law, on factual findings that are not supported by
substantial evidence, or represents an unreasonable judgment
in weighing relevant factors." Gose v. U.S. Postal