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Tartaglia v. Department of Veterans Affairs

United States Court of Appeals, Federal Circuit

June 8, 2017

MARK J. TARTAGLIA, Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent

         Petition for review of the Merit Systems Protection Board in No. DC-0752-14-1108-I-1.

          Neil Curtis Bonney, Bonney, Allenberg & O'Reilly, PC, Virginia Beach, VA, argued for petitioner.

          Eric 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.

          Before Newman, Schall, and Wallach, Circuit Judges.

          Wallach, Circuit Judge.

         Petitioner 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.

         Background

         The 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.[1] The VA proposed Mr. Tartaglia's removal based on three charges, some with multiple specifications:[2](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 MSPB.

         In an 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.

         In its 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.

         The instant appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

         Discussion

         I. Standard of Review

         We 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 ...


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