                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3202


                                  DONALD A. DAVIS,

                                                             Petitioner,

                                           v.

                             DEPARTMENT OF JUSTICE,

                                                             Respondent.


      Donald A. Davis, of Jamaica, New York, pro se.

       Vincent D. Phillips, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Martin F. Hockey, Assistant Director. Of counsel were Dawn S. Conrad and
Elizabeth A. Holt, Trial Attorneys.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2008-3202

                                  DONALD A. DAVIS,

                                                                     Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                                     Respondent.

    Petition for review of the Merit Systems Protection Board in NY0752070114-I-1.

                           ___________________________

                              DECIDED: March 3, 2010
                           ___________________________


Before NEWMAN, FRIEDMAN, and DYK, Circuit Judges.

PER CURIAM.

      Donald A. Davis (“Davis”) appeals a final order of the Merit Systems Protection

Board (“Board”) sustaining the decision of the Department of Justice removing Davis

from his position as a correctional officer. See Davis v. Dep’t of Justice, No. NY-0752-

07-0114-I-1 (M.S.P.B. Jan. 16, 2008) (“Final Order”). We affirm.

                                    BACKGROUND

      On November 29, 2006, Davis was removed from his position as a correctional

officer at the Metropolitan Correctional Center (“MCC”) in New York, New York. The

removal notice contained five charges: (1) misuse of Davis’s Bureau of Prisons

(“agency”) credential, (2) possession of an altered government credential, (3) failure to

report an outside contact between Davis and an associate of an inmate, (4) carrying a
concealed weapon under the Law Enforcement Officer Safety Act of 2004 without the

agency’s acknowledgment, and (5) engaging in outside employment without the

agency’s approval. The warden of the MCC sustained all five charges against Davis.

      Davis appealed to the Board challenging his removal. The Administrative Judge

(“AJ”) sustained only one of the five charges against Davis: the failure to report an

outside contact. See Davis v. Dep’t of Justice, No. NY-0752-07-0114-I-1, slip op. at 20

(M.S.P.B. Sept. 14, 2007) (“Initial Decision”). The circumstances relating to this charge

involve a second job that Davis held providing security for recording artists at a

company called Koch Entertainment (“Koch”). An MCC inmate, Barry Williams (a.k.a.

“Strobe”), who worked in the music industry and with people at Koch, sought Davis out

after hearing of their mutual connection to Koch. Another correctional officer at the

prison introduced the two, in the process warning Davis to be careful because the

inmate and Davis knew some of the same people. On June 2, 2006, Strobe called an

intern at Koch, Chris, and asked him to give Davis a package of t-shirts and compact

discs. Chris then called Davis and told him that Strobe wanted him to have a package,

though Chris did not tell Davis what was in the package.

      It is undisputed that Davis did not report this telephone call from Chris about an

unknown package from an inmate to his supervisors, despite the requirement in the

agency’s Standards of Employee Conduct that

      [a]n employee who becomes involved in . . . any situation that might give
      the appearance of improper involvement with inmates . . . must report the
      contact, in writing, to the CEO as soon as practicable. This includes, but
      is not limited to, telephone calls or written communications with such
      persons outside the normal scope of employment.




2008-3202                               2
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement No. 3420.09,

Standards of Employee Conduct 9 (1999). This requirement was also covered in the

agency’s annual training. In the days following the call, Davis did not attempt to inform

anyone that he had been told about an unknown package from an inmate, even though

he could have talked to a duty officer or left a note. Davis testified at his Board hearing

that he saw the matter as “no big deal,” and he thought, “Maybe I’ll get around to

[reporting] it, maybe I won’t.   We’ll see what happens when I get to work.”         Initial

Decision, slip op. at 9.

       In affirming the penalty of removal for the failure to report charge, the AJ noted

that the warden had testified that he would have removed Davis for the failure to report

charge alone. Id. at 20. The AJ also gave great significance to the training Davis had

received, the higher standard of conduct expected of correctional officers, and the

warning by the other officer about the inmate. See id. at 20–21. Thus, the AJ found

that the penalty was “within the limits of reasonableness.” Id. at 21.

       Davis filed a petition for review with the full Board, which was denied, making the

initial decision of the AJ the final decision of the Board. See Final Order, slip op. at 2.

Davis timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(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).




2008-3202                                3
      On appeal, Davis does not challenge the failure to report charge; he argues only

that the penalty imposed against him is disproportionately harsh as compared to his

offense. We will only overturn an agency’s penalty determination if it is “so harsh and

unconscionably disproportionate to the offense that it amounts to an abuse of

discretion.” O’Neill v. Dep’t of Housing & Urban Dev., 220 F.3d 1354, 1365 (Fed. Cir.

2000) (quoting Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984))

(quotation marks omitted). To earn that deference, selection of the penalty must have

been based upon a responsible balancing of the relevant factors set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981). Under the circumstances of

this case, the Board did not err in sustaining the agency’s decision to remove Davis. As

noted by the Board, the MCC’s warden considered Davis’s solid record at the agency,

but nevertheless felt that other factors—the seriousness of the offense, the repeated

training, the warning from the other officer, his status as a law enforcement officer, and

the effect of his conduct on his supervisor’s confidence in his performance abilities—

supported Davis’s removal.

      As for the fact that the Board affirmed the removal despite sustaining only one of

the five charges against Davis, remand on the penalty issue may be appropriate in

some such cases where the nexus between the charges brought by the agency and the

penalty imposed is severed. Lachance v. Devall, 178 F.3d 1246, 1259 (Fed. Cir. 1999).

However, “when the agency makes . . . clear before the Board” that “the agency itself

would have imposed the same penalty on the basis of the sustained charges that it

chose on the basis of the combined charges,” the nexus is not severed and the

agency’s chosen penalty is entitled to deference. Id. Here, the MCC’s warden testified




2008-3202                               4
that “[w]ith respect to the charge [of] failure to report as alleged against . . . Davis,” he

“would . . . have terminated [Davis] for that charge alone” because it was “very serious”

and affected “the safety and security of all the people in the institution.”        Hearing

Transcript at 124–25, Davis v. Dep’t of Justice, No. NY-0752-07-0114-I-1 (M.S.P.B.

June 4, 2007). Thus, the Board’s decision to sustain the removal was supported by

substantial evidence and was not arbitrary, capricious, or an abuse of discretion.

       For the aforementioned reasons, we affirm.

                                        AFFIRMED

                                          COSTS

       No costs.




2008-3202                                 5
