Tartaglia v. Department of Veterans Affairs
858 F.3d 1405
Fed. Cir.
2017
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Docket

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

2016-2226

United States Court of Appeals, Federal Circuit.

June 8, 2017

volve the Reform Act, but instead was considering a cause of action under the Nonintercourse Act of 1790; (2) the case was decided before and without the benefit of the 1994 List Act; (3) the court concluded that it did have jurisdiction to declare the tribe before it eligible for relief under the Nonintercourse Act; (4) the court declined to do so, however, in deference to an already pending action before the Secretary of the Interior seeking such recognition; and (5) the court expressly declined to decide whether the doctrine of primary jurisdiction would require the same result in the absence of an already instituted administrative proceeding. Those facts are materially distinguishable from those before us. We are operating with the benefit and direction of the Reform Act and the List Act. Neither the claims court nor we have authority to give the appellant the relief it seeks because they cannot allege that they have a statutory prerequisite to that relief—inclusion on the list.

I view this case as the equivalent of someone who asserts a claim for patent infringement without first seeking and obtaining a patent from the Patent and Trademark Office (“PTO“). The court would have no authority to recognize a common law right to a patent. It is not that the PTO would have primary jurisdiction to issue a patent, it is the only entity with any authority to issue a patent. And the right to go to court claiming infringement is predicated on the PTO having first done so. If the party had failed to receive a patent from the PTO before filing its infringement suit, a court considering the action would have to dismiss the action for failure to state a claim because the plaintiff could not demonstrate the underlying property right necessary to allege infringement of that right. Similarly, here, the court cannot provide the requested remedy because the Wyandot Nation of Kansas has not been recognized by the Secretary of the Interior and placed on the Secretary‘s list of federally-recognized tribes; the Wyandot Nation of Kansas, therefore, has failed to state a claim on which relief can be granted because it cannot demonstrate that it has met the conditions precedent to pursuing its claim. The statutory right to an accounting is tied to the Secretary of the Interior‘s list of federally recognized tribal entities and cannot be authorized for a tribe that is not on that list.

While I agree with the majority that reference to traditional notions of “exhaustion” does not really fit the circumstances here, neither do notions of primary jurisdiction.

I would affirm because the Wyandot Nation of Kansas has not asserted a claim upon which relief can be granted by the claims court.

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 . 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. (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 . Although the MSPB found that the VA failed to prove two of the three remaining specifications of Charge 1, , it upheld Mr. Tartaglia‘s removal based solely on Specification 5 to Charge 1, . 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.” (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

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 interpre-tation of the law, on factual findings that are not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors.” (internal quotation marks and citation omitted).

II. The MSPB Abused Its Discretion in Upholding Mr. Tartaglia‘s Removal

Mr. Tartaglia argues that the MSPB abused its discretion in sustaining the VA‘s decision to remove him from employment. See Pet‘r‘s Br. 5-13. After setting forth the applicable framework, we address Mr. Tartaglia‘s specific arguments in turn.

A. Legal Framework

After the MSPB completed its review in this case, it sustained only one of the specifications forming the basis for Mr. Tartaglia‘s removal by the VA. See . In , we stated that,

[w]hen the [MSPB] sustains fewer than all of the agency‘s charges, the [MSPB] may mitigate to the maximum reasonable penalty so long as the agency has not indicated either in its final decision or during proceedings before the [MSPB] that it desires that a lesser penalty be imposed on fewer charges.

It is undisputed that, in this case, the VA did not indicate either in its final decision or during proceedings before the MSPB that it desired that a lesser penalty be imposed based upon Charge 1, Specification 5, alone. In ruling on Mr. Tartaglia‘s petition, the MSPB therefore recognized that it was in a Lachance situation. See . Thus, it was for the MSPB to determine the “maximum reasonable penalty” to be imposed upon Mr. Tartaglia.

In , the MSPB set forth twelve factors to be considered in determining the appropriate penalty for the subject employee. See ; see also (explaining that Douglas “requires” the employing agency to consider the twelve factors but “does not mandate that any particular factor be given special treatment[] or that all factors be considered in every case without regard to their relevancy“). When (as here) the MSPB itself must determine the penalty, the MSPB is required to “independently balance the relevant Douglas factors with heightened sensitivity when reviewing agency penalties upon fewer charges than those brought by the agency.” . The Douglas factors the MSPB considered relevant here were “the employee‘s past disciplinary record” and “past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.” , 5 M.S.P.R. 280; see (analyzing these factors). We defer to the MSPB‘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 unconscionably disproportionate to the offen[s]e that it amounts to an abuse of discretion.” (emphasis added) (internal quotation marks and citation omitted).

B. The MSPB‘s Final Order Rested Upon Unsupported Factual Findings

Mr. Tartaglia raises a series of arguments alleging that the MSPB abused its discretion in sustaining the VA‘s decision to remove him from employment. See Pet‘r‘s Br. 5-13. Several of these argu-ments ask us to reweigh the evidence, see at 8-10 (inviting the court to reweigh the evidence as to Mr. Tartaglia‘s prior disciplinary record, his remorse over the misconduct, and his intent), which we may not do, see (explaining that “the weight to be given the relevant [Douglas] factors lies primarily within the agency‘s broad discretion to determine the appropriate penalty for a particular case“).

Those points notwithstanding, we do agree with Mr. Tartaglia that the MSPB abused its discretion in sustaining the VA‘s imposition of the penalty of removal. Specifically, Mr. Tartaglia contends that substantial evidence does not support the MSPB‘s factual finding as to the length of his Federal Government service and that the erroneous finding infected the MSPB‘s analysis of certain Douglas factors. See Pet‘r‘s Br. 7-8, 11-12. We agree.

The record establishes that the MSPB miscalculated the length of Mr. Tartaglia‘s federal service. The MSPB found that Mr. Tartaglia served the VA for “approximately [four] years,” , but the record shows that Mr. Tartaglia actually worked for the VA for fourteen years and that he served in the military for another five years, see J.A. 27-28 (discussing his VA service), 70-72 (discussing his military service); see also (acknowledging the relevance of an employee‘s military service when analyzing “length of service” under Douglas); (same); accord (considering employee‘s military service in its “length of service” analysis).3 The MSPB‘s miscalculation affected its assessment of at least two Douglas factors—Mr. Tartaglia‘s past disciplinary record and his past work record. See (explaining that Mr. Tartaglia‘s purported four-year tenure “temper[ed]” mitigating factors such as his “outstanding work record and lack of prior discipline” (citations omitted)). As a result, the MSPB abused its discretion because it used facts unsupported by substantial evidence in its analysis. See (“When an agency has improperly applied the Douglas factors in selecting a penalty, it has abused its discretion.“). The MSPB must reassess Mr. Tartaglia‘s removal in light of the correct facts.

Although the MSPB abused its discretion in sustaining the penalty of removal, we decline Mr. Tartaglia‘s invitation to “reverse the decision of the [MSPB], suspend [him] for thirty (30) days, and order the [VA] to reinstate [him] with backpay and benefits, including interest and attorney fees.” Pet‘r‘s Br. 14 (capitalization omitted). Mr. Tartaglia‘s request would have us fashion the precise penalty for his misconduct. However, when (as here) the MSPB sustains less than all charges and the agency has not indicated that it would impose a lesser penalty, it is for the MSPB (not this court or the agency) to determine the penalty. See (“Our precedent in Lachance ... requires that in such circumstances the case return to the [MSPB] rather than the agency.” (citation omitted)). Accordingly, we vacate the Final Order of the MSPB and remand the case to the MSPB for determination under Lachance of some penalty less than removal. We say “less than removal” because we conclude that, in the circumstances of this case, removal would be unreasonable and disproportionate to the relatively minor offense committed (i.e., running a personal errand using a government-owned vehicle), particularly in light of Mr. Tartaglia‘s total of nineteen years of combined military and civil service and the fact that he had not previously been charged with misconduct. See ; see also Pet‘r‘s Br. 8 (stating that “Mr. Tartaglia had no prior disciplinary record“); Resp‘t‘s Br. 11 (acknowledging Mr. Tartaglia‘s “lack of prior disciplinary history“). On remand, the MSPB will have the opportunity to determine the appropriate penalty for Mr. Tartaglia that is less than removal. See ; see also (remanding “for ... determination ... of an appropriate lesser penalty” when a single charge against an employee was sustained but this court found the penalty of removal to be an abuse of discretion).

Keith D. SNYDER, Petitioner v. SECRETARY OF VETERANS AFFAIRS, Respondent

2016-1529

United States Court of Appeals, Federal Circuit.

June 8, 2017

CONCLUSION

We have considered the parties’ remaining arguments and find them unpersuasive. Accordingly, the Final Order of the MSPB is vacated. The case is remanded to the MSPB for further proceedings consistent with this opinion.

VACATED AND REMANDED

COSTS

Costs to Mr. Tartaglia.

Notes

1
Pages 1 to 79 of the Joint Appendix accompany Mr. Tartaglia‘s opening brief, and pages 80 to 121 of the Joint Appendix are attached to the Government‘s response brief.
2
Each independent “specification” constitutes a separate act or event that supports a charge. See, e.g., .
3
In its brief, the Government concedes that the MSPB erred. See Resp‘t‘s Br. 11 (“Although Mr. Tartaglia is correct that he worked for the VA for more than four years, the MSPB‘s decision correctly reflects that Mr. Tartaglia was employed for only four years at the VA facility in Hampton, Virginia.” (emphasis added) (citation omitted)).
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