                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                        05-3180

                              WILLIAM A. BROWN, JR.,

                                                                       Petitioner,

                                            v.

                         DEPARTMENT OF THE TREASURY,

                                                                       Respondent.

                           __________________________

                           DECIDED: October 12, 2005
                           __________________________


Before MAYER, CLEVENGER, and DYK, Circuit Judges.

PER CURIAM.

      William A. Brown, Jr., appeals the March 7, 2005, order of the Merit Systems

Protection Board ("Board" or "MSPB") which denied Mr. Brown's petition for review and

adopted the initial decision of the administrative judge ("AJ"). See Brown v. Dep't of

Treasury, No. SF0752040077-I-1 (MSPB Mar. 7, 2005) ("Final Decision"). In that initial

decision, the AJ sustained the decision of the Internal Revenue Service ("agency" or

"IRS") removing Mr. Brown from his position as Contact Representative, GS-7, for three

incidents of absence without leave ("AWOL") and for two incidents of failing to follow

instructions to not call the Treasury Inspector General for Tax Administration ("TIGTA")

office. See Brown v. Dep't of Treasury, Docket No. SF0752040077-I-1 (MSPB Feb. 27,

2004) ("Initial Decision"). Because the Board's decision is supported by substantial

evidence, we affirm.
                                             I

      On June 30, 2003, the agency proposed removing Mr. Brown from his position as

Contact Representative, GS-7, with the IRS, Wage and Investment Division, Accounts

Management Operations Area I, in Fresno, California. The agency cited two reasons:

repeated incidents of AWOL and two incidents of failing to follow instructions. The

agency also noted several prior personnel issues: a July 2001 admonishment for rude

and discourteous conduct and failure to respond or cooperate; written counseling in

October 2002 for unprofessional conduct; and a March 2003 suspension for causing a

disruption in the workplace and for failing to conduct oneself in a business-like manner.

On October 6, 2003, after considering Mr. Brown's oral reply, the deciding officer

sustained both charges and effected removal. In November, Mr. Brown filed an appeal

with the Board, charging procedural error.

      The AJ ruled in favor of the agency, finding that it had sustained its burden of

proof by preponderant evidence with respect to the reasons for dismissal.          Initial

Decision at 5-11. The AJ concluded that removal was not such an excessive penalty as

to constitute an abuse of discretion. Id. at 13-16. The AJ also found that Mr. Brown had

failed to establish that proper procedure required that he be granted administrative

leave on February 23, 2003. Id. at 11. Likewise, the AJ found that Mr. Brown's claims

under Article 39, section 2d of the National Agreement between the agency and the

appellant's union were unavailing; the decision to dismiss Mr. Brown was not based on

allegations that Mr. Brown committed a crime, such that the provision did not apply. Id.

      Mr. Brown subsequently filed a petition for review by the full Board. On March 7,

2005, the Board denied the petition. The initial decision of the AJ therefore became the




05-3180                                 2
final decision of the Board, and Mr. Brown timely sought review in this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                              I

       We must affirm MSPB final decisions unless they are arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule or regulation; or unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000); Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir.

1984). In addition, we will only overturn a determination that a particular penalty is

appropriate if "the severity of the agency's action appears totally unwarranted in light of

all factors."   Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (internal

quotation omitted).

                                             III

       As to the original allegations of the agency, the Board found that the agency

carried its burden of preponderant evidence. To prove a charge of absence without

leave, the agency must show by preponderant evidence that the employee was absent,

and that his absence was not authorized or that his request for leave was properly

denied.   Rojas v. United States Postal Serv., 74 M.S.P.R. 544, 548 (1997), aff'd,

152 F.3d 940 (Fed. Cir. 1998). Mr. Brown was absent on February 24, 2003, and

June 5 and 6, 2003. On February 24, Mr. Brown was escorted home after a meeting in

which he appeared "very agitated," "belligerent," and "intoxicated." He did not return to

work, such that he was absent from work for five hours. He did not request leave, such

that his absence was not authorized. Mr. Brown provided no evidence to the contrary.

On June 5 and 6, Mr. Brown called to inform his supervisor, Mr. Thatcher, that he would




05-3180                                  3
not be coming to work on those days.        On both occasions, Mr. Thatcher informed

Mr. Brown that he would not approve annual leave.            Mr. Thatcher testified that

Mr. Brown submitted no justification for requesting leave, that no circumstances

warranted emergency leave, and that Mr. Brown was needed to work. Mr. Brown offers

no evidence why the failure to grant leave was improper. Thus, substantial evidence

supports the AJ's finding that the agency proved that Mr. Brown was AWOL.

       In order to show failure to follow instructions, it must be shown that proper

instructions were given and that the petitioner failed to comply, although intent is not

necessary. Hamilton v. United States Postal Serv., 71 M.S.P.R. 547, 555-57 (1996).

The record shows that on May 30, 2003, Mr. Brown placed a series of phone calls to the

TIGTA office in which he was belligerent, sounded "inebriated" and "was not making

sense." Mr. Thatcher spoke to Mr. Brown and instructed him not to call TIGTA any

more. However, on June 2 and 3, Mr. Brown made two more phone calls to TIGTA.

That evidence is unrebutted.         Thus, substantial evidence supports the AJ's

determination that the agency proved by preponderant evidence that Mr. Brown failed to

follow instructions.

       As the AJ noted, the choice of penalty is left to the discretion of the agency. See

Miguel v. Dep't of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984). Thus, "under the

abuse of discretion standard . . . we will not disturb a choice of penalty within the

agency's discretion unless the severity of the agency's action appears totally

unwarranted in light of all factors." Lachance, 178 F.3d at 1251 (internal quotation

omitted). Mr. Brown has not raised any arguments which indicate that the choice of

penalty was unwarranted. The AJ noted that the deciding official considered relevant




05-3180                                 4
factors, including the nature and seriousness of the misconduct, which he concluded

was "quite serious," and its relation to Mr. Brown's duties.      Initial Decision at 15.

Although the AJ found that the agency improperly considered two other personnel

actions when choosing to remove Mr. Brown, he found that the decision was

nonetheless warranted, as Mr. Brown continued to behave disruptively even after he

was "warned repeatedly that his behavior was disruptive, unprofessional and must not

continue." Id. Likewise, we find that there is substantial evidence to support the AJ's

determination that the agency's decision to remove Mr. Brown was not so excessive as

to constitute an abuse of discretion.

                                             IV

         In his appeal, Mr. Brown argues that the agency's action was in contravention of

5 U.S.C. § 7513, arguing that "elements of criminal misconduct were not proven."1

However, as is clear from the Board decision, Mr. Brown was not removed because he

committed or was accused of committing a crime, but because he was charged with

AWOL and failure to follow instructions.          Simply because criminal charges were

contemplated in connection with the activities for which he was removed does not

require that, in order to remove Mr. Brown, the agency must prove that he committed a

crime.

         Mr. Brown further argues that the MSPB failed to consider that "[r]espondent did

not contact [him] within the time frame specified by the MSPB to discuss settlement."

Pet. Br. at ¶ 4. However, the record shows that settlement possibilities were discussed



         1
             Mr. Brown appears to be invoking 5 U.S.C. § 7513(b)(1), which exempts
from the 30-day written notice requirement actions where there is reasonable cause to
believe the employee has committed a crime.


05-3180                                  5
during the telephonic prehearing conference on February 2, 2004. While there is no

further evidence of settlement discussions prior to the AJ's initial decision, the

settlement attorney noted that as of July 1, 2004, prior to the final decision, settlement

discussions had taken place but that no settlement had been reached.            Although

Mr. Brown raised this issue in his appeal to the Board, he does not present any

evidence indicating that there were no settlement discussions, nor does he allege that

further settlement negotiations would have proven effective.

      Mr. Brown also argues that he received "ineffective union representation,"

because he agreed to accept suspension in March 2003 as a lesser form of disciplinary

action. Pet. Br. at ¶ 5. While we have no record to establish whether Mr. Brown's

representative was a lawyer or was not, or was effective or was not, there is no ground

for setting aside the decision.    We have repeatedly rejected claims of ineffective

assistance of counsel in regard to MSPB appeals. See Phillips v. United States Postal

Serv., 695 F.2d 1389 (Fed. Cir. 1982). Mr. Brown, as a civil petitioner, is bound by both

the acts and omissions of chosen counsel. See Link v. Wabash R.R. Co., 370 U.S.

626, 633-34 (1962).

      In sum, Mr. Brown has not shown that the Board committed any legal or

procedural error in its analysis. Further, the Board's decision to uphold the actions of

the agency was supported by substantial evidence, and was neither arbitrary nor

capricious. Thus, we affirm.




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