                       NOTE: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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.




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