                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2007-3273


                                  DAVID PETERSON,

                                                             Petitioner,

                                           v.


                            DEPARTMENT OF THE NAVY,

                                                             Respondent.



      Jonathan C. Goldman, Goldman & Ehrlich, of Chicago, Illinois, for petitioner.

       Scott Slater, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Harold D. Lester, Jr., Assistant Director.

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                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                         2007-3273

                                      DAVID PETERSON,

                                                       Petitioner,

                                            v.

                             DEPARTMENT OF THE NAVY,

                                                       Respondent.


Petition for review of the Merit Systems Protection Board in CH-0752-06-0711-I-1.
                            __________________________

                               DECIDED: March 7, 2008
                            __________________________


Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

       David Peterson seeks review of the final decision of the Merit Systems Protection

Board sustaining his removal from his position of Firefighter with the Department of

Public Safety at Naval Station Great Lakes, Illinois. For the reasons set forth below, the

Board’s final decision is affirmed.

       The relevant facts in this case are not in dispute. On March 4, 2003, Peterson

signed a memorandum acknowledging that his Firefighter position was a testing

designated position for random drug testing in accord with the Navy’s Drug-Free

Workplace Program Handbook. The mememorandum also stated that the penalty for a
first-time drug offense ranged from reprimand to removal. On April 25, 2006, Peterson

was informed that his urine had tested positive for THC, a metabolite of marijuana. In a

June 12, 2006 meeting with Peterson’s first line supervisor Lt. Joseph O’Hara, Peterson

admitted that he had attended a party, gotten drunk, and smoked marijuana. Peterson

claimed that this was a one-time occurrence caused by impaired judgment stemming

from his inebriation by alcohol. The agency does not contest Peterson’s position that

this was a one time occurrence. Lt. O’Hara issued a Notice of Proposed Removal,

which gave Peterson ten days to respond to the Deciding Official, Captain Richard

Postera.    Cpt. Postera met with Peterson and the union representative and

subsequently issued a Notice of Decision on July 12, 2006, removing Peterson from his

employment by the agency.

       This court’s review of an agency’s choice of penalty is extremely limited. Stump

v. Dep’t of Transp., 761 F.2d 680, 681 (Fed. Cir. 1985). “‘It is a well-established rule of

civil service law that the penalty for employee misconduct is left to the sound discretion

of the agency.’” Lachance v. Devall, 178 F.3d 1246, 1251–52 (Fed. Cir. 1999) (quoting

Miguel v. Dep’t of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984)).            The agency is

required to consider “all factors relevant to the case, such as the authorized range of

penalties, the nature of the offense, its relation to the employee's duties, the effect of the

offense on the agency's confidence in the employee, and possibly eight additional

factors set forth in Douglas v. Veterans Administration, 5 MSPB 313 (1981).” Hayes v.

Dep’t of the Navy, 727 F.2d 1535, 1540 (Fed. Cir. 1984). While the agency must also

balance the factors so that the penalty imposed is “reasonable in light of the sustained

charges, our court has effectively defined reasonable in this context to mean merely that




2007-3273                                 2
the agency's choice of penalty not be ‘grossly disproportionate to the offense.’” Webster

v. Dep’t of the Army, 911 F.2d 679, 686 (Fed. Cir. 1990) (quoting Miguel, 727 F.2d at

1083). “Whether this court would have chosen a different penalty is irrelevant.” Id.

(citing Hunt v. Dep’t of Health and Human Servs., 758 F.2d 608, 611 (Fed. Cir. 1985)).

       On appeal, Peterson challenges the Board’s decision on the grounds that it is

unreasonable and, in the alternative, that it is not supported by substantial evidence. As

part of rendering the Notice of Decision, Cpt. Posera carefully documented his explicit

consideration of each of the twelve Douglas factors, including the potential for

Peterson’s rehabilitation and the availability of alternative penalties, and concluded that

removal was nevertheless appropriate. The Notice of Decision states that a firefighter’s

essential duties include rendering emergency medical assistance and fighting fires and

that these duties require good judgment and a high level of public trust. Although harsh,

the penalty of removal is not grossly diproportionate to an offense of drug use by an

emergency responder in the Naval Station’s Department of Public Safety.

                                     CONCLUSION

       For the foregoing reasons, we affirm the decision of the Board

                                         COSTS

       No costs.




2007-3273                                3
