Powe v. United States Postal Service , 282 F. App'x 808 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3006
PHILLIP A. POWE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Arthur R. Ehrlich, Goldman & Ehrlich, of Chicago, Illinois, for petitioner.
Michelle A. Windmueller, Attorney, Appellate Division, United States Postal Service,
of Washington, DC, for respondent. With her on the brief were Jeffrey S. Bucholtz, Acting
Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, and Lori J. Dym, Chief Counsel, Appellate
Division, United States Postal Service, of Washington, DC.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3006
PHILLIP A. POWE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in CH0752060768-I-1.
__________________________
DECIDED: June 18, 2008
__________________________
Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
Phillip A. Powe was removed from his position as Supervisor of Distribution
Operations at the United States Postal Service’s Chicago Metro Surface Hub. He
appealed his removal to the Merit Systems Protection Board (“Board”), which affirmed
the agency’s decision. 1 We affirm the Board’s decision.
1
Powe v. U.S. Postal Serv., No. CH-0752-06-0768-I-1 (M.S.P.B. Feb. 5,
2007) (initial decision); Powe v. U.S. Postal Serv., No. CH-0752-06-0768-I-1 (M.S.P.B.
Aug. 17, 2007) (Board’s denial of petition for review).
The scope of our review in an appeal from a decision of the Board is limited.
Generally, we must affirm the decision unless we find it to be “(1) arbitrary, capricious,
an abuse of discretion, or otherwise 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).
Mr. Powe’s removal was based on two charges—failure to follow Postal Service
regulations and policies regarding official travel by an employee with a cancelled
government charge card, and unauthorized use of his wife’s government travel charge
card. Mr. Powe has stipulated to the charges against him and does not challenge the
determination that the agency’s penalty promoted the efficiency of the service, 5 U.S.C.
§ 7513(a). Accordingly, the only issue before the Board was whether the penalty of
removal was within the bounds of reasonableness.
Mr. Powe contends that the Board abused its discretion when it sustained the
penalty imposed by the agency because the deciding official, Mr. Anderson, failed to
consider all the relevant Douglas factors. See Douglas v. Veterans Admin., 5 M.S.P.R.
280, 305-06 (1981). One Douglas factor that the agency did not consider is the
consistency of the penalty with those imposed on other employees for the same or
similar offense. Mr. Powe, however, did not present any evidence of penalties imposed
on other employees for similar misconduct. Without such evidence, the absence of
which is unsurprising given the uniqueness of Mr. Powe’s offense, neither the agency
nor the Board was required to consider this factor. See Nagel v. Dep’t of Health &
Human Servs., 707 F.2d 1384, 1386-87 (Fed. Cir. 1983) (holding that only relevant
factors must be considered).
2008-3006 2
Mr. Powe also argues that the agency failed to consider certain mitigating factors
when determining the appropriate penalty. See VanFossen v. Dep’t of Housing &
Urban Dev., 748 F.2d 1579, 1581 (Fed. Cir. 1984) (“failure to consider a significant
mitigating circumstance constitutes an abuse of discretion”). First, he contends that the
agency should have considered that he was not clearly on notice that using his wife’s
card would violate Postal Service regulations and policies. Mr. Anderson, however,
testified that Mr. Powe was aware of the policies and regulations pertaining to use of a
government charge card and had stated that he would use personal funds to pay for his
travel. Furthermore, although the relevant agency regulations and policies were
outlined in the proposed removal letter Mr. Powe received, he testified that he did not
inform Mr. Anderson in a subsequent meeting that he had been unaware of such
regulations and policies at the time of his misconduct. Under these circumstances, we
cannot say that the Board abused its discretion in affirming the removal despite the
agency’s alleged failure to consider this factor.
Mr. Powe further argues that the agency should have considered as a mitigating
circumstance the fact that he did not charge any personal or unauthorized expenses to
his wife’s card. The agency’s decision letter recites the various expenses charged to
the card and acknowledges that that they were official travel expenses. The Board’s
decision also states that Mr. Powe used his wife’s card to pay for official travel. That
Mr. Powe charged only legitimate business expenses to the card was therefore part of
the record, and there is no indication that the deciding official did not take this into
consideration. Thus we cannot say that the Board abused its discretion by not
mitigating the penalty based on this fact.
2008-3006 3
In addition, Mr. Powe contends that the deciding official erred in his consideration
of one of the Douglas factors, the employee’s prior disciplinary record, when he treated
a prior disciplinary action as a removal, which was the penalty originally proposed,
instead of as a letter of warning in lieu of suspension, the penalty ultimately imposed. It
is clear from the record, however, that Mr. Anderson considered the circumstances
surrounding the prior disciplinary action in their entirety, including the misconduct that
led to the discipline and the agency’s decision to reduce the penalty. On this record, the
Board did not abuse its discretion in concluding that the deciding official properly
considered Mr. Powe’s prior disciplinary record.
Finally, Mr. Powe cites Miguel v. Department of the Army, 727 F.2d 1081 (Fed.
Cir. 1984), as support for his claim that the agency and Board erred by focusing on the
nature of his offense without considering the specific circumstances surrounding his
conduct. In Miguel, we concluded there was an abuse of discretion because it was the
policy of the deciding official in cases of theft to select the maximum penalty available
even though the table of penalties provided that the penalty should be determined
primarily by the value of the items stolen. As we later explained in DeWitt v.
Department of the Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984), there is no abuse of the
type found in Miguel when the penalty is based on the particular facts of a case and a
responsible balancing of the Douglas factors. Here both the agency and the Board
carefully analyzed the relevant Douglas factors in light of the circumstances of Mr.
Powe’s case.
While we recognize the apparent harshness of the penalty imposed on Mr. Powe,
we are limited in these cases by our standard of review. We “cannot and will not disturb
2008-3006 4
a penalty unless it is unauthorized or exceeds the bounds of reasonableness because it
is so harsh and unconscionably disproportionate to the offense that it amounts to an
abuse of discretion, or where the record is devoid of any basis demonstrating
reasonableness.” Dominguez v. Dep’t of the Air Force, 803 F.2d 680, 684 (Fed. Cir.
1986). Whether we would have selected a different penalty if we had made the original
decision is irrelevant. Id. On the record in this case, which fully supports the findings
made by the agency and the Board, we cannot say the Board abused its discretion in
sustaining the agency’s penalty of removal.
COSTS
Each party shall bear its own costs.
2008-3006 5