Gumbs v. Hhs , 620 F. App'x 945 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAIME GUMBS,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2014-3194
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-13-0648-I-1.
______________________
Decided: August 12, 2015
______________________
JAMES MASON LOOTS, Law Office of James M. Loots,
PC, Washington, DC, argued for petitioner.
WILLIAM JAMES GRIMALDI, 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., ALLISON KIDD-MILLER; NIGEL GANT,
TONYA SAVAGE, Office of General Counsel, United States
Department of Health and Human Services, Dallas, TX.
2 GUMBS v. HHS
______________________
Before DYK, MOORE, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge CHEN.
Dissenting opinion filed by Circuit Judge DYK.
CHEN, Circuit Judge.
Dr. Jaime Gumbs appeals from a final order of the
Merit Systems Protection Board (Board) which adopted
the initial decision of an administrative judge and sus-
tained Dr. Gumbs’ removal from the Indian Health Ser-
vice, Pawnee Health Center (agency) based on the charges
of failing to maintain a valid medical license and practic-
ing medicine without a valid license. Gumbs v. Dep’t of
Health and Human Servs., No. DA-0752-13-0648-I-1
(MSPB July 10, 2014) (Final Order). Because substantial
evidence supports the Board’s findings sustaining the
agency’s charges against Dr. Gumbs, and the Board did
not abuse its discretion in determining that the penalty
for Dr. Gumbs’s misconduct was reasonable, we affirm.
BACKGROUND
Dr. Gumbs was employed with the Indian Health Ser-
vice (IHS) as a General Practice Medical Officer in the
Pawnee Service Unit in Pawnee, Oklahoma (clinic) for
almost 22 years. The clinic operates with the permission
of several Native American tribes in the area to provide
medical care for members of those tribes. Joint Appendix
(J.A.) 55. As a medical officer, Dr. Gumbs was subject to
the Bylaws, Rules, and Regulations of the Medical Staff of
the United States Public Health Service, Pawnee Service
Unit, IHS (bylaws). Under these bylaws, Dr. Gumbs was
required to have a current, full, and unrestricted medical
license. J.A. 111. The bylaws also required Dr. Gumbs to
be fully credentialed prior to seeing patients at the clinic.
J.A. 116.
GUMBS v. HHS 3
For most of his employment at the agency, Dr. Gumbs
was licensed to practice medicine by the Commonwealth
of Puerto Rico (Puerto Rico). He is not licensed by any
other state or territory to practice medicine. At some
point, Dr. Gumbs began to experience administrative
difficulties and delays in renewing his medical license
with the Puerto Rico Department of Health, Office of
Regulation and Certification of Health Professionals
(medical board). J.A. 93.
According to Dr. Gumbs, when seeking to renew his
medical license in 2007, the Puerto Rico medical board’s
computer system failed to timely process his application,
and as a result, his license lapsed. Dr. Gumbs informed
his supervisor, Dr. Steven P. Sanders, director of the IHS
clinic, that his license had inadvertently expired. Dr.
Gumbs was without an active medical license for about a
month as he waited for the Puerto Rico medical board to
renew his license. During this period, Dr. Gumbs did not
see patients or perform any of his job responsibilities. At
this time, Dr. Sanders did not place Dr. Gumbs on leave
without pay status or file a formal disciplinary action
against him.
The next renewal date for Dr. Gumbs’ license was in
2010. According to Dr. Gumbs, the medical board’s web
site again failed during the renewal application process,
and thus the renewal of his license was again delayed. Id.
Despite these administrative difficulties, Dr. Gumbs
received his renewed license three days before it was
scheduled to expire. Id.
In 2013, Dr. Gumbs again allowed his medical license
to lapse. Dr. Gumbs’ license was set to expire on May 8,
2013, and he began the application process for renewal of
his license in February of that year. According to Dr.
Gumbs, the Puerto Rico medical board’s online portal was
experiencing technical difficulties when he attempted to
access the site during the month of February. Dr. Gumbs
4 GUMBS v. HHS
next attempted to access the site three weeks later in
March. According to Dr. Gumbs, the site was again
experiencing difficulties. In April, Dr. Gumbs enlisted the
help of a physician co-worker at the clinic who also had
experience renewing his license with the Puerto Rico
medical board. Nevertheless, even with his co-worker’s
help, Dr. Gumbs was unable to complete his license
renewal application online. During this period of time,
Dr. Gumbs informed Dr. Sanders as well as Kristie Cho-
ate, the clinic’s credentialing officer, that he had not yet
renewed his medical license.
Unable to complete his license renewal online, on
April 22 Dr. Gumbs sent a paper copy of his license re-
newal application to the medical board with a money
order of $150 to cover what he believed to be the renewal
fee. The application was received by the medical board on
April 29. On May 7, Dr. Gumbs informed Dr. Sanders
and Ms. Choate that his license had not been renewed,
and that it would expire by the next day.
Dr. Gumbs’ license expired at midnight on May 7.
Although aware that his license had expired, Dr. Gumbs
arrived at work on May 8 and began his normal rounds.
He evaluated a patient, prescribing medication to treat
that patient. J.A. 99–105. Dr. Gumbs was in the middle
of examining a second patient when he was interrupted
by Dr. Sanders, who ordered him to stop treating pa-
tients. Dr. Sanders had just been informed by Ms. Choate
that Dr. Gumbs’ license had not been renewed and thus
had expired. Dr. Gumbs was thereafter reassigned to the
medical records department, and was not permitted to see
any other patients.
Dr. Gumbs then learned he had not yet submitted a
complete license application because he had not included
the full required renewal fee with his application. J.A. 95.
On May 9, Dr. Gumbs purchased a money order for an
additional $100—the amount still owed to the Puerto Rico
GUMBS v. HHS 5
medical board. The medical board received Dr. Gumbs’
full renewal fee on May 15, which completed his license
renewal application. Id. The next day, on May 16, the
medical board called Dr. Gumbs to inform him that his
now-completed application had been accepted and that he
would receive a renewal of his medical license by e-mail.
Id. The renewal was dated May 16, the day the licensing
authority received and cashed the money order submitted
by Dr. Gumbs in order to complete his license renewal
application. Id.
In a letter dated May 22, 2013, Dr. Sanders notified
Dr. Gumbs that he was proposing to remove him based on
his failure to maintain a valid medical license and his
practice of medicine without a valid medical license. On
June 18, 2013, Dr. Travis Scott, Chief Executive Officer of
the clinic, notified Dr. Gumbs that he had decided to
remove him from his position for “(1) Failure to maintain
a valid medical license, and (2) Practice of medicine
without a valid medical license.” J.A. 82.
Dr. Scott explained that “[m]aintaining a valid medi-
cal license [wa]s a condition of employment,” and alt-
hough Dr. Gumbs was aware of the difficulties in
renewing his medical license from the Puerto Rico medical
board, he had not accepted responsibility for the untime-
liness in obtaining that renewal. Id. Dr. Scott noted that
Dr. Gumbs treated a patient after expiration of his medi-
cal license, and was in the middle of evaluating another
patient when Dr. Sanders instructed him to stop. Id. Dr.
Scott explained that it was Dr. Gumbs’ “responsibility to
recognize that [he] d[id] not have authorization to practice
medicine without a medical license.” Id. Dr. Scott con-
tinued that “[t]hese requirements are clearly stated in the
Medical Staff By-laws.” Id. Dr. Scott explained that Dr.
Gumbs’s misconduct exposed the clinic to liability. Id.
When selecting removal over a lesser penalty, Dr.
Scott explained that Dr. Gumbs held a position that
6 GUMBS v. HHS
required a medical license, and that his failure to main-
tain such a license adversely impacted the clinic. Dr.
Scott considered Dr. Gumbs’s lengthy service and aware-
ness of the clinic’s bylaws, and also provided an analysis
justifying Dr. Gumbs’s proposed removal under eleven of
the twelve factors identified in Douglas v. Veterans Ad-
min., 5 M.S.P.B. 313, 332 (1981).
Dr. Gumbs timely appealed the agency’s action re-
moving him from service. Gumbs v. Dep’t of Health and
Human Servs., No. DA-0752-13-0648-I-1 (MSPB Nov. 7,
2013) (Initial Decision). An administrative judge found
the agency had proven both charges forming the basis of
Dr. Gumbs’s removal by a preponderance of the evidence:
that Dr. Gumbs failed to maintain a valid medical license
and that Dr. Gumbs practiced medicine without a license.
Initial Decision at 2–10. The judge determined that in
view of the sustained charges, the agency’s penalty of
removal was reasonable. Id. at 10–12.
Dr. Gumbs petitioned for review of the Board’s initial
decision, arguing that it was contrary to evidence, that
the clinic’s action did not promote the efficiency of the
service, and that the penalty of removal was not reasona-
ble. The Board denied this petition and affirmed the
initial decision, finding that Dr. Gumbs had not shown
error in the administrative judge’s findings, that the
agency had established a nexus between Dr. Gumbs’
misconduct and an adverse effect on the agency’s opera-
tions, and that in view of the sustained charges, the
penalty of removal was reasonable. Final Order at 2–6.
Dr. Gumbs timely appealed the Board’s Final Order. We
have jurisdiction over Dr. Gumbs’ appeal pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is defined narrowly and
limited by statute. E.g., Graybill v. United States Postal
Serv., 782 F.2d 1567, 1570 (Fed. Cir. 1986); Maddox v.
GUMBS v. HHS 7
Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985). We
must affirm a Board decision unless it is 1) arbitrary or
capricious or not in accordance with law, 2) obtained
without procedures required by law, rule, or regulation
having been followed, or 3) unsupported by substantial
evidence. 5 U.S.C. §§ 7703(c)(1)–(3); Hayes v. Dep’t of the
Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
I
Dr. Gumbs does not challenge the Board’s finding that
his medical license expired, which supported the agency’s
charge that Dr. Gumbs failed to maintain a valid medical
license. Appellant’s Br. 2 (“[T]here was a seven-day lapse
between expiration of [Dr. Gumbs’s] existing license and
issuance of a renewed one.”). Indeed, there is no dispute
that Dr. Gumbs did not submit a complete license renewal
application until May 15, 2013, when the medical board
received Dr. Gumbs’ full license renewal application fee.
J.A. 95; see also Letter from parties, Dkt. No. 72 (“[T]he
parties agree the record shows that, as of the morning of
May 8, 2013, Dr. Gumbs owed the Puerto Rico licensing
authority an additional $100.”).
Instead, Dr. Gumbs challenges the Board’s finding
that he practiced medicine without a license. Dr. Gumbs
argues that he only saw a single patient. He notes that
Dr. Sanders eventually reviewed and completed the
medical records associated with that patient. Dr. Gumbs
also asserts there is no evidence he actually performed
any services or engaged in any activities that morning for
which a medical license was expressly required. However,
the record shows that Dr. Gumbs reviewed a patient’s
medical history, conducted a physical, and then pre-
scribed and signed off on treatment and medication to
that patient. J.A. 32–33; 99–105. There is no dispute he
was purporting to act as a doctor, and not a paraprofes-
sional or medical assistant. Second, while Dr. Sanders
subsequently reviewed the medical records for the patient
8 GUMBS v. HHS
evaluated by Dr. Gumbs, Dr. Sanders’ subsequent review
does not erase the fact that it was Dr. Gumbs—and not
Dr. Sanders—who actually saw, evaluated, and pre-
scribed treatment for the patient. Thus, although Dr.
Gumbs attempts to justify his conduct on the morning of
May 8, his explanation does not negate the substantial
evidence supporting the Board’s finding that he practiced
medicine without a valid license.
II
Dr. Gumbs also challenges the Board’s finding that
his removal promoted the efficiency of the agency’s ser-
vice. A federal agency may discipline an employee “only
for such cause as will promote the efficiency of the ser-
vice.” 5 U.S.C. § 7513(a). The agency must demonstrate a
“nexus” between the employee’s misconduct and “an
adverse effect upon the agency’s functioning.” Mings v.
Dep’t of Justice, 813 F.2d 384, 389–90 (Fed. Cir. 1987).
We uphold a Board’s finding of a “nexus” if it is supported
by substantial evidence. Brown v. Dep’t of Navy, 229 F.3d
1356, 1358 (Fed. Cir. 2000).
Dr. Gumbs argues that because nothing in the record
shows that he provided anything but routine, quality
medical care at the clinic on May 8, there was no risk of
negative repercussions from his action. Dr. Gumbs mini-
mizes, however, the potential negative repercussions that
could have resulted from his misconduct. As the Board
found, Dr. Gumbs’ misconduct “not only threatened the
trust of the Native American community, but also exposed
the agency to liability.” Final Order at 5.
The failure to maintain a valid medical license and
the practice of medicine without such a license were “a
violation of [the] Joint Commission Accreditation Stand-
ard[s],” J.A. 36, and a violation of the clinic’s bylaws.
Final Order at 4; J.A. 82. For example, the clinic’s bylaws
require all medical professionals to “[h]old a current, full
and unrestricted license to practice as a licensed inde-
GUMBS v. HHS 9
pendent practitioner (i.e., Medical / Osteopathic Physician
. . .) in the United States, or Territory of the United
States.” J.A. 111. The bylaws also require medical prac-
titioners to “be fully credentialed prior to seeing patients
in the [clinic].” J.A. 116. Thus, even accepting that Dr.
Gumbs provided “routine quality care” without his li-
cense, it is the practice of medicine without a license itself
that forms the basis of his misconduct.
As Dr. Scott explained in his proposal to remove Dr.
Gumbs from his position, the mission of the agency is to
provide “the best health care possible at the highest level
for the American Indian/Alaska Natives in the tribal
community.” J.A. 85. Dr. Gumbs occupied a position with
regular contact with the public and became well-known to
the patients and to the population of the community at-
large. Id. Dr. Scott explained that Dr. Gumbs’ “lack of
responsibility to ensure he maintained a valid license
affect[ed] the mission of the [clinic] to provide clinical
services” to those in this community. In particular, Dr.
Scott asserted that if Dr. Gumbs’ unlicensed practice of
medicine became known to the Native American commu-
nity, it was “the experience of the [agency] that this
becomes newsworthy and adversely impacts the reputa-
tion of the agency.” J.A. 86.
In addition, Dr. Scott noted that Dr. Gumbs was well
aware of the requirements to maintain his medical li-
cense, and even though he knew that his license had
expired, chose to place the clinic at risk by providing
unlicensed medical care. J.A. 85. This placed the clinic in
violation of its own bylaws and exposed the agency to tort
liability by creating a presumption that both Dr. Gumbs
and the clinic were providing negligent care. J.A. 82–83.
Dr. Gumbs’ characterization of the harm from his un-
licensed practice of medicine as “speculative” misses the
point because it does not account for the mission of the
agency. As explained by Dr. Scott, it is important to the
10 GUMBS v. HHS
clinic to maintain the trust of the Native American com-
munity, and any lapse of responsibility to maintaining
adequate standards—such as by violating its own by-
laws—threatened to break that trust. See J.A. 36. Even
if no harm to the agency specifically resulted from his
treatment of the patient on May 8, on a more general
level, Dr. Gumbs’ misconduct had the potential to cause
significant harm to the agency if it caused the Native
American community to perceive that the clinic was not
adhering to its internal procedures and was not dedicated
to providing responsible medical care. In short, substan-
tial evidence supports the Board’s finding of a nexus
between Dr. Gumbs’ misconduct and an adverse effect on
the agency. 1
III
Dr. Gumbs also argues that the penalty of dismissal
was disproportionate and unreasonable. He contends
that his misconduct did not warrant removal from his
position and that Dr. Scott should have given considera-
tion to alternative penalties. Consideration of an appro-
priate penalty is a matter committed primarily to the
discretion of the employer and can be reversed only for an
abuse of discretion. See Lachance v. Devall, 178 F.3d
1246, 1251 (Fed. Cir. 1999); Villella v. Dep’t of the Air
Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984). The penalty
1 Dr. Gumbs also argues that his removal denigrat-
ed the agency’s mission by delaying patient care and
increasing the workload of the remaining care providers
while IHS was hiring a new physician. But the focus of
the efficiency inquiry is its impact of the employee’s
misconduct on the agency, not the impact of the imposed
penalty itself. See Mings, 813 F.2d at 389–90. While Dr.
Gumbs’ allegations may be true, they do not negate
evidence of a nexus between Dr. Gumbs’ misconduct and
an adverse effect on the agency.
GUMBS v. HHS 11
must be reasonable in light of the sustained charges, and
we have “effectively defined reasonable in this context to
mean merely that the agency’s choice of penalty not be
grossly disproportionate to the offense.” Webster v. Dep’t
of Army, 911 F.2d 679, 685 (Fed. Cir. 1990) (internal
quotations omitted).
Here, the Board evaluated the reasonableness of the
agency’s penalty after consideration of several relevant
factors laid out in Douglas, 5 M.S.P.B. at 332. 2 In partic-
2 The Douglas factors are: 1) the nature and seri-
ousness of the offense, and its relation to the employee’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 employ-
ment, 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 em-
ployee's ability to perform at a satisfactory level and its
effect upon supervisors’ confidence in the employee’s work
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) the potential for the employee’s rehabilita-
tion; 11) mitigating circumstances surrounding the of-
fense such as unusual job tensions, personality problems,
mental impairment, harassment, or bad faith, malice or
12 GUMBS v. HHS
ular, because Dr. Gumbs failed to maintain a condition of
his employment—holding a valid medical license—the
Board determined the most relevant Douglas factors were
1) the nature of the offense, 2) its effect on his job perfor-
mance, and 3) the availability and effect of alternative
sanctions. Final Order at 6. The Board found that the
agency properly considered the seriousness of the charge
of practicing medicine without a license, the fact that Dr.
Gumbs, as a condition of his employment was required to
maintain his license and be fully credentialed before
treating patients, and the fact that Dr. Gumbs knew his
license had expired yet still decided to practice medicine,
which exposed the agency to liability and jeopardized the
Native American community’s trust in the clinic. Id. The
Board explained that although Dr. Scott was aware that
other options existed, based on the sustained charges,
removal was not an unreasonable penalty due to the
gravity of Dr. Gumbs’ misconduct. Id. at 7.
Dr. Gumbs argues that because the lapse of his medi-
cal license was unintentional and inadvertent, and that
his misconduct was not willful and did not appear to
result in any actual harm, a lesser sanction would have
been more appropriate. But our role is not to reweigh
anew the evidence before the Board. Dr. Scott explained
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. Douglas, 5 M.S.P.B. at 332. We have
approved the use of these factors for determining the
reasonableness of a penalty. Zingg v. Dep’t of Treasury,
IRS, 388 F.3d 839, 841 (Fed. Cir. 2004). However, the
factors listed in Douglas are not exhaustive, and an
agency is required only to consider those factors relevant
to the action. Bryant v. Nat’l Sci. Found., 105 F.3d 1414,
1418 (Fed. Cir. 1997).
GUMBS v. HHS 13
that although a lesser sanction was possible, he believed
Dr. Gumbs need to be removed “to make sure that [Dr.
Gumb’s misconduct] d[idn’t] happen again at [the clinic].”
J.A. 48. We find no abuse of discretion in the Board’s
determination that the agency’s penalty, in view of the
sustained charges that Dr. Gumbs let his license expire
and then practiced medicine without a license, is not
unreasonable.
AFFIRMED
COSTS
No costs.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAIME GUMBS,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2014-3194
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-13-0648-I-1.
______________________
DYK, Circuit Judge, dissenting.
The majority affirms a decision of the Merit Systems
Protection Board (“Board”) sustaining the Department of
Health and Human Service’s (the “agency”) removal of Dr.
Jaime Gumbs from his position as a medical officer at the
Indian Health Service, Pawnee Health Center, in Okla-
homa, for allowing his medical license to lapse and treat-
ing one or two patients after the license had lapsed. I
respectfully dissent.
2 GUMBS v. HHS
I
The agency and the Board viewed Dr. Gumbs’ allow-
ing his medical license to lapse and treating one or two
patients as a serious matter. The agency’s deciding
official relied on a finding that “practicing medicine
without a license is illegal in all states,” J.A. 82, and a
“violation of laws regulating licensure requirements,” J.A.
86. The deciding official further found that Dr. Gumbs’
conduct exposed the agency to “potential liability issues,”
J.A. 85. The Board’s initial decision relied on the agency’s
finding that Dr. Gumbs’ conduct was “a violation of law.”
J.A. 22. And the full Board affirmed, finding that removal
was reasonable under the circumstances in part because
of “the seriousness of the charge of practicing medicine
without a license and the fact that the appellant’s actions
exposed the agency to liability.” J.A. 6.
It is far from clear that, as the Board assumed, Dr.
Gumbs’ license had in fact lapsed. Dr. Gumbs applied to
renew his medical license no later than April 22, 2013,
prior to its expiration on May 7, 2013, and submitted a
$150.00 fee. If the proper amount had been submitted, it
appears that the license would have been extended auto-
matically. Under both Oklahoma (where all of the con-
duct at issue occurred) and Puerto Rico (where Dr. Gumbs
was licensed to practice medicine) law, it appears that the
filing of a timely renewal application extends the license
term. Oklahoma Stat. tit. 75, § 314(B) provides:
Except as otherwise prohibited by law, if a licen-
see has made timely and sufficient application for
renewal of a license or a new license with reference
to any transfer of an activity of a continuing na-
ture, the existing license does not expire until the
application has been finally determined by the
agency.
GUMBS v. HHS 3
Id. (emphasis added). Under Puerto Rico law, the Medi-
cal Discipline and Licensure Board “may suspend the
license of any physician . . . who does not submit the
information required for the register every three years,
for the term it deems convenient, contingent upon the
facts involved in each case.” P.R. Laws Ann. Tit. 20,
§ 134(c) (emphasis added). But “once the person meets
the requirement of submitting such information, his/her
license shall be activated by the Board.” Id. Thus, it
appears that under Puerto Rico law, even when a physi-
cian fails to timely renew a medical license, it is likely
that the license does not automatically terminate.
According to Dr. Gumbs’ May 27, 2013, letter to the
deciding official regarding the notice of proposed removal,
he “sent the required application and documents with the
money that was asked for on the web site well in advance
of any deadline for renewal.” J.A. 95. Dr. Gumbs also
acknowledged that he “later found out” that the licensing
authority “wanted another $100.00,” so he sent the re-
maining $100 on May 15th, 2013. Id.
The government argues on appeal, and the majority
agrees, that the failure to make the additional $100
payment resulted in the lapse of his license. But it is not
clear under either Oklahoma or Puerto Rico law that the
failure to make the full payment caused the license to
lapse since the application was otherwise complete. This
is a matter for the Board in the first instance, and the
Board did not address the issue. In my view, the majority
errs by deciding the issue without a remand.
Even if we could properly assume that Dr. Gumbs’ li-
cense lapsed because he failed to timely submit $100 of
the license renewal fee, the Board’s action in sustaining
the penalty of removal would have been arbitrary and
capricious.
4 GUMBS v. HHS
First, it is unclear whether either Oklahoma or Puerto
Rico law would have regarded Dr. Gumbs’ continuing to
practice as criminal, or even particularly serious. Here,
neither the agency nor the Board cited any criminal
statute or regulation that Dr. Gumbs violated. Instead,
the agency relied on its conclusory assumption that Dr.
Gumbs’ conduct was “illegal in all states,” J.A. 82, but did
not even attempt to analyze his conduct under Oklahoma
or Puerto Rico law, where his conduct may not have
constituted a criminal violation. We have held that where
an agency removes an employee based on a finding that
conduct was criminal, but the conduct may or may not
have been criminal, a remand is required. See Doe v.
Dep’t of Justice, 565 F.3d 1375, 1383 (Fed. Cir. 2009)
(reversing and remanding “[b]ecause it seems probable
that Doe was disciplined at least in part because the
deciding official mistakenly believed that his misconduct
was in violation of the law”). Under Doe, therefore, since
part of the basis for Dr. Gumbs’ removal was the agency’s
potentially mistaken belief that his conduct was criminal,
a remand for consideration of a lesser penalty is required.
Second, even if the Board properly assumed that Dr.
Gumbs’ actions were technically illegal, the penalty of
removal was still arbitrary and capricious, particularly
since Dr. Gumbs may have assumed that his license
renewal was complete. 1 It is true that we “defer[] to the
1 The majority asserts that Dr. Gumbs was “aware
that his license had expired,” Maj. Op. 4, but the record is
unclear on this point. According to Dr. Gumbs, he “was
expecting that [he] would be receiving the renewal” on
May 8, 2013, and did not realize until later that he still
owed $100 for the license renewal. J.A. 95; see also Letter
from parties at 2, Dkt. No. 72 (“As of [May 8, 2013],
despite repeated inquiry Dr. Gumbs had no reason to
GUMBS v. HHS 5
agency’s choice of penalty unless the penalty exceeds the
range of permissible punishment specified by statute or
regulation, or unless the penalty is so harsh and uncon-
scionably disproportionate to the offense that it amounts
to an abuse of discretion.” Archuleta v. Hopper, 786 F.3d
1340, 1352 (Fed. Cir. 2015) (internal quotation marks
omitted). But even where all of the agency’s charges are
sustained, that deference is not absolute. See, e.g.,
O’Keefe v. U.S. Postal Serv., 318 F.3d 1310, 1313 (Fed.
Cir. 2002) (“When all of the agency’s charges are sus-
tained, the agency’s original penalty may nevertheless be
mitigated to a maximum reasonable penalty when the
agency’s penalty is too severe.” (citing Lachance v. Devall,
178 F.3d 1246, 1260 (Fed. Cir. 1999)). In prior cases, we
have reversed agency penalty determinations in similar
circumstances where the punishment did not fit the
crime, even where the employee’s conduct was unlawful.
In Miguel v. Department of the Army, 727 F.2d 1081
(Fed. Cir. 1984), a cashier was removed for “unauthorized
possession of U.S. Government property” for admittedly
stealing two bars of soap with a total value of $2.10. Id.
at 1082. We reversed: “We do not condone theft regard-
less of the amount involved, but the relatively minor
nature of the theft leads us to the conclusion that this
harsh discharge of a 24-year employee with an otherwise
unblemished record was a penalty grossly disproportion-
ate to the offense and thus was an abuse of discretion.”
Id. at 1084; see also Abrigo v. U.S. Postal Serv., No. 88-
3390, 1989 WL 59271, at *1 (Fed. Cir. June 7, 1989)
(unpublished) (vacating and remanding removal for
misdemeanor unauthorized entry “where the penalty
imposed [wa]s so disproportionate as to constitute an
know that there was anything amiss with his application
for renewal.”).
6 GUMBS v. HHS
abuse of discretion” and “[t]he agency and the [B]oard
gave absolutely no consideration to the . . . apparently
technical nature of the violation”).
Similarly, in VanFossen v. Department of Housing &
Urban Development, 748 F.2d 1579 (Fed. Cir. 1984), an
appraiser (VanFossen) was removed “based on three
charges of violating the standards of conduct: engaging in
outside employment without authorization; engaging in
improper outside employment; and failing to disclose
financial interests.” Id. at 1580. VanFossen had more
than nineteen years of federal service with no prior disci-
plinary record. Id. He had previously requested and
received approval for outside employment from an area
manager, but under applicable regulations this approval
was not legally sufficient because it needed to come from
the agency’s regional counsel. Id. We vacated and re-
manded to determine an appropriate lesser penalty. Id.
at 1581.
Here, Dr. Gumbs has had nearly twenty-two years of
federal service, with no prior disciplinary record. At
worst, his medical license lapsed for a period of nine days
because he failed to pay $100 of the application fee, de-
spite his “many attempts to get his medical license re-
newed” prior to the deadline. J.A. 3. And on the morning
after his license may have expired, Dr. Gumbs saw a
patient or two, whose records were then reviewed by his
supervisor.
Our prior cases reflect an important responsibility to
remand for determination of a more appropriate penalty
in the rare case where the agency’s choice of penalty is
grossly disproportionate to the offense. In my view, this is
such a case, and I respectfully dissent.