Before Plager, Clevenger, and Rader, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
Appealed from: Merit Systems Protection Board
Based on charges brought against him, the Navy removed Larry Devall from his government position. On appeal to the Merit Systems Protection Board ("Board"), the Board sustained some but not all of the charges, and independently determined a lesser penalty. The Office of Personnel Management ("OPM") petitions for review, contending that, under the Civil Service Reform Act ("CSRA" or "Reform Act"), the Board does not have such independent authority to set penalties. We agree with OPM, and vacate the Board's decision. The case is remanded to the Board, but with different instructions than those urged by OPM.
Larry Devall, a Maintenance Mechanic Helper, WG-5, has been employed by the Navy for over 13 years. On May 17, 1995, the Navy summoned Mr. Devall to repair some bathroom plumbing in a bachelor officer's quarters. Ms. Scarlet Evans, a Navy enlisted person, accompanied him as part of her duties to look after officers' property while workers are present. Based on Ms. Evans's report to her supervisor, the Navy alleged that Mr. Devall asked Ms. Evans on several occasions during his May 17 work assignment to come into the bathroom to assist him or to give her opinion about the needed repairs, and that while in the bathroom Mr. Devall leaned over Ms. Evans, brushed against her, and touched her buttocks in a manner that left her uncomfortable and frightened. The Navy further alleged that Mr. Devall watched television in the quarters for about 20 minutes while waiting for penetrating oil to loosen screws in the shower drain. The Navy charged Mr. Devall with sexual harassment based on the alleged incidents involving Ms. Evans, and with inattention to duty and unauthorized use of another's property based on the alleged television incident. Upon these charges the Navy exercised its disciplinary authority pursuant to 5 U.S.C. § 7513 (1994) and removed Mr. Devall.
On August 17, 1995, Mr. Devall timely appealed the Navy's removal action to the Board. Ms. Evans testified extensively at a hearing held before an administrative Judge as to the circumstances pertaining to the charges brought against Mr. Devall. In an Initial Decision dated February 9, 1996, the administrative Judge credited Ms. Evans's testimony and thereby sustained the Navy's sexual harassment charge. However, in view of the short time period involved during which Mr. Devall was merely waiting with reasonable diligence for the penetrating oil to take effect, the administrative Judge found the unauthorized use charge de minimis notwithstanding its technical sustainability and found the inattention to duty charge unsustainable.
The administrative Judge next reviewed the removal penalty imposed by the Navy on Mr. Devall. The agency's deciding official testified that the agency considered the sexual harassment charge the primary basis for the imposed removal penalty. The administrative Judge acknowledged this testimony, but nevertheless reviewed the penalty under a standard articulated by the administrative Judge as follows:
"[W]hile the agency's choice of penalty is a matter primarily committed to an agency's discretion, when some of the charges relied on by the agency are not sustained, as here, the same deference is not afforded to an agency's selection of penalty. In this situation, the Board reviews the penalty under a different standard. I must assess the circumstances to determine whether the remaining sustained charges warrant the penalty imposed and, if it does not, then determine the "maximum reasonable penalty" for the reduced charges and mitigate to that level." Devall v. Department of the Navy, MSPB Docket No. DA-0752-95-0794-I-1 at 10 (Feb. 9, 1996) (quoting Bree v. Department of Health and Human Services, 49 M.S.P.R. 68, 72 (1991)).
Notwithstanding that the Navy's table of penalties lists removal as a possible first offense penalty for discrimination against an employee on the basis of sex, after considering the evidence of record in light of the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) ("the Douglas factors"), *fn1 the administrative Judge determined that a 30-day suspension represented the maximum reasonable penalty under the circumstances.
The Navy petitioned the Board for review of the administrative Judge's initial decision only with respect to the administrative Judge's mitigation of the Navy's removal penalty. The Board granted the petition for review and issued a split decision in which each Board member wrote a separate opinion. See Devall v. Department of the Navy, 73 M.S.P.R. 500 (1997). Chairman Erdreich disagreed with the administrative Judge's less deferential standard for reviewing agency penalty determinations when fewer than all of an agency's charges against an employee are sustained. Instead, he articulated a review standard that showed no deference at all. Specifically, citing White v. United States Postal Service, 71 M.S.P.R. 521 (1996), Chairman Erdreich stated that "[w]hen not all of the agency's charges are sustained, the Board will independently and responsibly balance the factors described in [Douglas], in order to determine a reasonable penalty." Devall, 73 M.S.P.R. at 502. Applying this standard, Chairman Erdreich affirmed the administrative Judge's determination that the circumstances warranted mitigation of the Navy's penalty, but found the 30-day suspension too lenient and instituted a 90-day suspension instead. See id. at 504. Board Member Amador concurred with Chairman Erdreich that the proper penalty is a 90-day suspension, but reached this result under the standard of review set forth by the administrative Judge. See id. at 509. Board Vice Chair Slavet agreed with Chairman Erdreich's statement of the proper standard of review, but in applying it found the Navy's removal penalty reasonable on the basis of the sexual harassment charge alone, and, accordingly, Dissented in the result. See id. at 511.
OPM then petitioned the Board for reconsideration of its final decision, pursuant to 5 U.S.C. § 7703(d) (1994), *fn2 arguing that the decision erroneously interpreted the law in a manner that will have a substantial impact on civil service law and regulations. Specifically, OPM argued that under the Board's own precedent, the Board must "give due weight to the agency's primary discretion in matters of employee discipline and efficiency" insofar as "the Board's function is not to displace management responsibility but to assure that managerial judgment has been exercised within tolerable limits of reasonableness." Devall v. Department of the Navy, 77 M.S.P.R. 468, 471 (1998) (summarizing OPM's position and citing Douglas, 5 M.S.P.R. at 302). As such, the Board "exceeded its authority when it found (relying on White) that it could independently determine a reasonable penalty when less than all agency charges were sustained," thus placing "a significant, unwarranted burden 'upon an agency's core executive power to discipline employees.'" Id. (quoting OPM's statement in the Board's Reconsideration File). Instead--as when all agency charges are sustained--the Board simply should have reviewed the agency's imposed penalty for abuse of discretion by assessing whether the penalty clearly exceeded the limits of reasonableness. If so, the Board should have done no more than assess the "maximum reasonable penalty"--i.e., the penalty at the outermost boundary of the range of reasonable penalties--that would have matched as closely as possible the agency's chosen penalty while still meeting the reasonableness requirement mandated by Douglas. Id. at 472.
The Board unanimously *fn3 rejected OPM's arguments on two grounds. First, the Board explained that when it sustains all of an agency's charges, according deference to the agency's penalty choice makes sense, because the penalty being reviewed is clearly the one the agency intended to impose based on those sustained charges. Not so when fewer than all of the agency's charges are sustained; in that case, the specific basis for the agency's penalty determination--the charges brought by the agency--is obliterated. In other words, the Board's decision not to sustain all of an agency's charges severs the nexus that would otherwise exist between those charges and the agency's chosen penalty based on those charges. Having "no definitive agency penalty selection to review[, application of] the 'maximum reasonable penalty' or 'abuse of discretion' standard . . . would necessarily require the Board to speculate about what the agency's penalty determination would have been and to defer to that fictional exercise of agency discretion." Id. (citing White, 71 M.S.P.R. at 526). The Board's solution: "Instead of engaging in that hypothetical exercise or prolonging the disciplinary and appeal process by remanding the case to the agency for a new determination, the Board [will] choose the more honest and expeditious course of independently and responsibly balancing the relevant Douglas factors to determine a reasonable penalty." Id. (citing White, 71 M.S.P.R. at 526-27).
Second, the Board contended, independent penalty selections when only some agency charges are sustained comports with the Board's view of its mitigation authority as it set forth in Douglas, as well as with the precedent of this court. Douglas stated that "[w]henever [an] agency's [penalty] action is based on multiple charges some of which are not sustained, the [Board] should consider carefully whether the sustained charges merited the penalty imposed by the agency." 5 M.S.P.R. at 308 (emphasis added). The Board insisted in its decision in this case that "this admonition to 'consider carefully' is inconsistent with the notion that the Board should simply defer to an agency's penalty selection when not all charges are sustained." Devall, 77 M.S.P.R. at 473 (citing White, 71 M.S.P.R. at 525). The Board further justified its view by citing several decisions of this court as supporting the notion that when fewer than all agency charges are sustained the Board itself must "identify, balance, and analyze the relevant Douglas factors." Id. (citing Chauvin v. Department of the Navy, 38 F.3d 563, 567 & n.4 (Fed. Cir. 1994); Webster v. Department of the Army, 911 F.2d 679, 686 (Fed. Cir. 1990); Quinton v. Department of Transportation, 808 F.2d 826, 829 (Fed. Cir. 1986); Kline v. Department of Transportation, 808 F.2d 43, 45-46 (Fed. Cir. 1986); Hagmeyer v. Department of the Treasury, 757 F.2d 1281, 1285 (Fed. Cir. 1985)).
Accordingly, finding no merit in OPM's arguments, the Board "reject[ed] OPM's invitation to overrule White" and denied OPM's petition for reconsideration. Devall, 77 M.S.P.R. at 474. OPM then petitioned this court to review the Board's standard for determining the appropriate penalty due Mr. Devall on the charges sustained against him. *fn4 See Lachance v. Devall, 152 F.3d 948 (Fed. Cir. 1998) (Table) (reported at 1998 WL 199677). We granted the petition, see id. at 1998 WL 199677 *2, and now turn to the merits of the case pursuant to our jurisdiction under 28 U.S.C. § 1295(a)(9) (1994).
The parties' arguments on appeal intertwine the issue of whether the Board has the authority to determine penalties independently, when fewer than all agency charges are sustained, with the issue of how such penalty determination should proceed. We consider it prudent to separate these issues, considering in this Part and in Part III whether independent penalty determination authority exists at all, and then turning in Part IV to the question of how the Board's mitigation authority should be exercised.
OPM argues from our case law that penalty determinations are "judgment calls" within the discretion of the employing agency. Beard v. General Serv. Admin., 801 F.2d 1318, 1322 (Fed. Cir. 1986) (quoting Weiss v. United States Postal Serv., 700 F.2d 754, 758 (1st Cir. 1983)). This proposition is unassailable, for, as we have stated: "[i]t is a well-established rule of civil service law that the penalty for employee misconduct is left to the sound discretion of the agency." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984). Accordingly, OPM points out, under the abuse of discretion standard that pertains to review of agency penalty determinations, we "will not disturb a choice of penalty within the agency's discretion unless the severity of the agency's action appears totally unwarranted in light of all factors." Mings v. Department of Justice, 813 F.2d 384, 390 (Fed. Cir. 1987); see also Beard, 801 F.2d at 1321 ("the employing (and not the reviewing) agency is in the best position to Judge the impact of employee misconduct upon the operations of the agency . . ."); Hunt v. Department of Health and Human Servs., 758 F.2d 608, 611 (Fed. Cir. 1985) ("Determination of an appropriate penalty is a matter committed primarily to the sound discretion of the employing agency."); Hagmeyer v. Department of Treas., 757 F.2d 1281, 1284 (Fed. Cir. 1985) (stating that penalty selection is "committed primarily and largely to the discretion of the agency" unless "the severity appears totally unwarranted").
Allowing the Board to usurp an agency's authority to set penalties when fewer than all agency charges have been sustained would, in OPM's view, undermine the discretionary authority vested by Congress in the employing agencies to manage their workforces. See Beard, 801 F.2d at 1322 ("The Conclusion that the Board is to review agency penalties under the abuse of discretion standard and not itself to determine the appropriate penalty comports with the language and purpose of the [Reform] Act and is consistent with settled principles of administrative law governing review of agency penalties.").
In any event, OPM contends, none of our decisions have ever permitted the Board to disregard entirely an agency's penalty choice and independently substitute its own. Indeed, quite to the contrary, OPM argues, when fewer than all of an agency's charges are sustained the Board must ascertain whether the agency would have imposed the same penalty given the sustained charges. See Berube v. General Serv. Admin., 820 F.2d 396, 400 (Fed. Cir. 1987). To hold otherwise would, in OPM's view, contravene the core principles of deference articulated by the Board itself in ...