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Longus v. Department of Health and Human Services

U.S. Court of Appeals, Federal Circuit

March 08, 1999


Before Plager, Circuit Judge, Smith, Senior Circuit Judge, and Rader, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Ms. Arnetta M. Longus appeals from the March 4, 1998, final decision, Docket No. DC-0752-97-1116-I-1, of the Merit Systems Protection Board ("Board") upholding the removal of Ms. Longus by the Department of Health and Human Services ("Agency") for allotting herself time extensions without approval from her supervisors. Because the Board did not err, we affirm.

Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board's decision unless it is arbitrary, capricious, an abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994).

The Agency removed Ms. Longus for failing to complete work assignments within established time frames and for attempting to conceal her lateness by manipulating a computer tracking system so as to give herself additional time to contact peer reviewers for manuscripts submitted to the Journal of the National Cancer institute ("Journal"). It is undisputed that Ms. Longus, herself, without authorization by senior editors of the Journal, entered "identify more peer reviewers" actions into the computerized tracking system on 71 occasions, giving herself a total of 213 extra work days to contact peer reviewers. However, she continues to dispute on appeal the Agency's characterization of her conduct as unauthorized and deceitful.

During the hearing, the Board considered and weighed the testimony from Ms. Longus as well as from Agency witnesses regarding the propriety of Ms. Longus's conduct. The Board found the Agency's witnesses more credible than Ms. Longus. Because a trial court's credibility determinations are "virtually unreviewable," see Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), we decline to disturb the Board's credibility determination.

On appeal, Ms. Longus also challenges the reasonableness of the Agency's action of removing her. Ms. Longus contends that a disciplinary or probationary period would have been more appropriate than a removal.

We accord great deference to the sound discretion of an agency regarding the agency's choice of penalties. See Weston v. United States Dep't of Housing and Urban Dev., 724 F.2d 943, 949 (Fed. Cir. 1983). An agency's penalty will not be disturbed unless it is so disproportionate to the offense involved that it is unreasonable and amounts to an abuse of discretion. See Yeschick v. Department of Transp., 801 F.2d 383, 384-85 (Fed. Cir. 1986).

The reasonableness of Ms. Longus's removal is supported by many of the Douglas factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305 (1981). For instance, Ms. Longus's concealment from her supervisors of her difficulties for contacting peer reviewers within the established time frames eroded their confidence in her integrity. In addition, Ms. Longus's actions created a significant bottleneck of manuscripts and made it difficult to determine the source of the bottleneck. Furthermore, during the period that Ms. Longus was allotting herself extra time to contact peer reviewers, the Journal's Editor-in-Chief had a diminished pool of manuscripts from which to select and was forced to accept papers of lower quality. Thus, the penalty of removal was not unreasonable.

The Board's final decision is affirmed.


Parties to bear their own costs.


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