                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      06-3046


                              MITCHELL A. LEVINSKY,

                                                           Petitioner,

                                          v.

                            DEPARTMENT OF JUSTICE,

                                                           Respondent.


                           __________________________

                            DECIDED: December 8, 2006
                           __________________________


Before MICHEL, Chief Judge, LOURIE and PROST, Circuit Judges.

MICHEL, Chief Judge.

       Mitchell A. Levinsky petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) reinstating Levinsky’s removal from his position as

an Immigration Judge. For the reasons discussed below, we affirm.

                               I.     BACKGROUND

      The Executive Office for Immigration Review (“EOIR”), an office within the

Department of Justice, employed Mitchell A. Levinsky as an Immigration Judge, starting

in November 1995.      Levinsky’s judicial duties included presiding over deportation

proceedings at Downstate Correctional Facility (“DCF”) in Fishkill, NY, for aliens who

had been convicted of serious felony offenses. In 1999, Mercedes Cesaratto, a trial
attorney assigned to the DCF, raised with her supervisor allegations of misconduct by

Levinsky.   Ms. Cesaratto’s supervisor relayed these allegations to the EOIR, which

referred them to the Office of Professional Responsibility (“OPR”). On March 28, 2000,

Ms. Cesaratto filed a discrimination complaint with the Equal Employment Opportunity

Office (“EEOO”) alleging that Levinsky had discriminated against her on the basis of

sex, religion, race, and national origin by subjecting her to a hostile and discriminatory

work environment. The EEOO, EOIR, and OPR, all within the Department of Justice,

separately investigated the allegations of misconduct.

      On May 12, 2000, the EOIR issued its investigative report finding that Levinsky

had engaged in communications that appeared to be offensive and inappropriate. On

April 24, 2001, the EEOO issued a final decision finding that Levinsky had subjected

Ms. Cesaratto to a discriminatory hostile work environment, in violation of Title VII, from

September 1998 to October 1999 (“hostile work environment misconduct”). The hostile

work environment misconduct is separate and distinct from the EOIR findings of

misconduct. The OPR issued its investigative report on September 23, 2002, finding

that Levinsky had engaged in professional misconduct (e.g., by expressing prejudiced

opinions about various ethnic groups) or had exercised poor judgment (e.g., by using

profanity in the courtroom) and recommending a suspension of seven to twenty days,

sensitivity training, and regular monitoring of Levinsky’s courtroom behavior.

      On November 4, 2002, Chief Immigration Judge Michael J. Creppy, Levinsky’s

second-level supervisor, proposed that Levinsky be discharged for repeated use of

(1) sexist and ethnically insensitive generalizations and (2) profanity (“EIOR charges of

misconduct”).   The EOIR charges of misconduct did not include the hostile work




06-3046                                     2
environment misconduct recited in the EEOO final decision. On July 1, 2003, David

Margolis, the deciding official, sustained both EIOR charges leveled by Chief

Immigration Judge Creppy and, rejecting the OPR’s recommendation of a suspension,

effected Levinsky’s immediate removal.       Letter from David Margolis, Assoc. Deputy

Attorney Gen., U.S. Dep’t of Justice, to Mitchell A. Levinsky, Immigration Judge, EOIR

(July 1, 2003) (“Removal Letter"). Levinsky appealed his removal to the Board. In an

Initial Decision dated June 30, 2004, Administrative Judge Barry G. Booker mitigated

Levinsky’s removal to a 60-day suspension.               Levinsky v. Dep’t of Justice,

No. NY-0752-03-0329-I-1, slip op. (M.S.P.B. June 30, 2004) (“Initial Decision”).

       The agency petitioned for full board review of the Initial Decision. The Board

accepted the petition and modified the Initial Decision on September 9, 2005, by

reinstating Levinsky’s removal. Levinsky v. Dep’t of Justice, 99 M.S.P.R. 574 (2005).

Levinsky filed a timely appeal with this court. We have jurisdiction under 5 U.S.C.

§ 7703(b)(1) and 28 U.S.C. § 1295(a)(9).

                                   II.    DISCUSSION

       Our review of MSPB decisions is limited by statute.                    Pursuant to

5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless it is “(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.”           Chase-Baker v. Dep’t of Justice,

198 F.3d 843, 845 (Fed. Cir. 1999) (citing 5 U.S.C. § 7703(c)). Administrative Judge

Booker mitigated the removal penalty to a suspension after finding that (1) the removal

decision was significantly based on the hostile work environment misconduct




06-3046                                      3
(i.e., misconduct with which the EOIR had not charged Levinsky) and (2) the agency

had failed to give proper weight to Levinsky’s subsequent good behavior and potential

for rehabilitation.        Initial Decision at 74; see Douglas v. Veterans Admin.,

5 M.S.P.R. 280, 285, 305 (1981) (discussing mitigation factors and the Board’s authority

to mitigate penalties).

       However, upon review of the Initial Decision, the full Board found that (1) the

uncharged hostile work environment misconduct was not a material factor in the

agency’s decision to remove Levinsky and (2) Levinsky’s potential for long-term

rehabilitation was unproven and uncertain.         With respect to the hostile work

environment misconduct, the Board based its decision in part on its review of the

deciding official’s Removal Letter, which did not mention the EEOO’s finding of hostile

work environment misconduct, and its review of the testimony of the deciding official,

who testified that in his penalty determination he had considered “nothing other than the

‘specific utterances’ and instances of profanity that were cited [in the removal proposal

letter] as bases for the charges.” Levinsky, 99 M.S.P.R. at 581. The Removal Letter

states in relevant part:

       Having sustained the [EOIR] charges, I must now select an appropriate
       penalty. My decision is guided by the so-called ‘Douglas’ factors, see
       Douglas v. Veterans Admin., 5 M.S.P.R. 313 [sic] (1981), a non-
       exhaustive list of relevant sanction considerations established by the Merit
       Systems Protection Board (“MSPB”).                The proposing official
       recommended that you be discharged from the federal service based on
       his own analysis of the Douglas factors. In articulating his reasoning, he
       observed . . . .
              While an isolated instance of uttering a profanity under compelling
              circumstances might be excused, your repeated use of profanity
              cannot be excused. The use of sexist and ethnically insensitive
              generalizations in court, where the individuals appearing before you
              are seeking asylum to escape persecution on those very bases,
              could never be excused.         The fact that such objectionable



06-3046                                     4
             statements by you were so frequently repeated indicates that you
             are unlikely to permanently change your behavior and, therefore,
             the likelihood of your rehabilitation is small.
      Proposal Letter at 2.
      I find myself in complete agreement with these statements. The
      reputations of both EOIR and DOJ are compromised by your continued
      presence as an immigration judge.

Removal Letter at 5.

      With respect to the rehabilitation factor, the Board based its decision in part on

the testimony of percipient witnesses who testified that Levinsky’s attempts to modify

his courtroom profanity and otherwise improper conduct after hearing complaints were

short-lived. Levinsky, 99 M.S.P.R. at 583. Failing to find factors that compelled or

adequately supported mitigation, the Board concluded that the agency’s removal of

Levinsky did not exceed the bounds of reasonableness and thus reinstated the

agency’s choice of penalty of removal. Id. at 587. Because the Board’s decision was

supported by substantial evidence and was not arbitrary, capricious, an abuse of

discretion, or otherwise improper, we cannot disturb the Board’s result.

      In arguing against his removal, Levinsky asserts that (1) the nearly 30-month

delay between May 12, 2000, when the agency became aware of the misconduct that

formed the basis of his removal, and November 4, 2002, the date of the proposal for his

removal, was a violation of his due process rights and (2) the agency failed to follow its

own procedures when it disregarded the OPR’s recommendation for a short

suspension. The agency objects to our considering the first argument on the grounds

that it was not raised below.       The government correctly asserts that generally

arguments not raised before the administrative judge or the Board may not

subsequently be raised before this court. Henry v. Dep’t of the Navy, 902 F.2d 949, 953




06-3046                                     5
(Fed. Cir. 1990); see also Cecil v. Dep’t of Transp., FAA, 767 F.2d 892, 894

(Fed. Cir. 1985) (discussing waiver of new issues that generally cannot be raised for the

first time on appeal).   Because Levinsky failed to raise delay1 as a violation of his due

process rights before Administrative Judge Booker or before the Board on review of the

Initial Decision, we hold that Levinsky has waived this argument.

       Levinsky asserts that the agency violated its own policy when it made an “upward

departure” (from suspension to removal) from the OPR’s recommendation. Because

the full Board does not address whether the “upward departure” was a violation of

internal agency procedures, the argument appears to have been waived. However,

because we lack Petitioner’s submissions to the Board and because the agency does

not object to our hearing Levinsky’s argument on the grounds of waiver, we will

address it.

       To the extent that the argument is not waived, we do not find Levinsky’s

argument to be persuasive. For example, Levinsky does not cite any formal internal

policy the agency violated. Instead, Levinsky merely cites the testimony of deciding

official David Margolis, who testified (before Administrative Judge Booker) that the

OPR’s recommendation was generally binding. Initial Decision at 67 (emphasis added).

Levinsky ignores Mr. Margolis’ testimony that there was a regulatory mechanism in

place authorizing Mr. Margolis to override the OPR’s recommendation and that under

Department procedures, the final authority for departing from the OPR’s recommended

penalty was vested in him as an Associate Deputy Attorney General. Id. To the extent

       1
               Although Levinsky raised lack of notice as grounds for a due process
violation before Administrative Judge Booker, he did not raise delay as a separate basis
for this violation. Moreover, Levinsky did not challenge before the full board Judge
Booker’s finding that he had been accorded minimum due process.


06-3046                                      6
that Mr. Margolis’ testimony involves agency interpretation of its regulations or policies,

we accord that interpretation broad deference. Gose v. United States Postal Serv.,

451 F.3d 831, 837 (Fed. Cir. 2006) (“We defer even more broadly to an agency's

interpretations of its own regulations than to its interpretation of statutes, because the

agency, as the promulgator of the regulation, is particularly well suited to speak to its

original intent in adopting the regulation.”) (internal citations omitted).

       Additionally, the agency cites to Memorandum 45.5 as support for the proposition

that Mr. Margolis had the authority to depart from the OPR’s recommendation.

Memorandum 45.5 provides in relevant part:

       [I]f the disciplinary official decides to take an action that is outside the
       range recommended by the OPR (whether it is harsher or more lenient),
       he or she must notify Associate Deputy Attorney General David Margolis
       in advance of implementing that decision.

Memorandum from the Deputy Attorney Gen. to All Component Heads and All

United States Attorneys (Nov. 23, 1994). Here, Mr. Margolis, as the deciding official,

was aware of and in fact ordered Levinsky’s removal. Therefore, Levinsky does not

convince us that Mr. Margolis’ exercise of his final authority to go above the OPR’s

recommended suspension penalty and remove Levinsky was a violation of agency

procedures.      Moreover, Levinsky ignores that the Chief Immigration Judge

recommended removal.

       Having considered all of the arguments presented by Levinsky, we discern no

basis for the reversal of the Board’s decision.




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