                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3019

                                BRIAN K. NEWSOME,

                                                            Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                                            Respondent.


      Brian Keith Newsome, of Lithonia, Georgia, pro se.

       Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Michael F. Hertz, 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                       NOTE: This disposition is nonprecedential.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


                                       2009-3019


                                 BRIAN K. NEWSOME,

                                                              Petitioner,

                                           v.

                         DEPARTMENT OF THE TREASURY,

                                                              Respondent.



    Petition for review of the Merit Systems Protection Board in AT0752080282-I-1.


                            _________________________

                              DECIDED: July 29, 2009
                            _________________________


Before GAJARSA, LINN, and PROST, Circuit Judges.

PER CURIAM.

      Brian K. Newsome petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) affirming his thirty-day suspension from his position as a Tax

Examiner at the Internal Revenue Service (“Agency”). Newsome v. Dep’t of Treasury,

MSPB Docket No. AT0752080282-I-1 (Final Order, Aug. 4, 2008). Because the Board

committed no legal error, we affirm.
                                    BACKGROUND

       For fifteen years, Mr. Newsome was employed as a Tax Examiner Technician by

the Agency. On May 23, 2007, he was issued a notice of proposed adverse action

recommending that he be suspended for thirty days for his failure to follow the

instructions of management.     The notice of proposed adverse action outlined two

specifications regarding Mr. Newsome’s failure to follow management instructions.

First, the notice alleged Mr. Newsome’s failure to comply with his unit’s clean desk

policy contained in the Input Correction Operation Employee Expectations and Work

Practices book. Second, the notice contended that Mr. Newsome failed to comply with

his manager’s directive to contact his supervisor, instead of a policy analyst, with any

technical questions.

       Mr. Newsome provided an oral reply to the allegations on June 14, 2007.

Subsequently, the Agency determined that the thirty-day suspension was appropriate,

taking into consideration the serious and intentional nature of the offense,

Mr. Newsome’s three prior suspensions that resulted from similar misconduct, and the

clarity of the notification regarding the rules that Mr. Newsome had received. In lieu of

the suspension, Mr. Newsome entered into a settlement agreement with the Agency on

September 5, 2007. Pursuant to the agreement, the Agency withheld a final decision

regarding the proposed suspension on the condition that Mr. Newsome follow his

manager’s instructions and readily respond to her directives. If he failed to do so during

a twelve-month probationary period, the agreement permitted the Agency to effectuate

the thirty-day suspension without issuing a new proposal letter or providing an additional

opportunity to reply.




2009-3019                                   2
       On or about December 7, 2007, the Agency implemented the suspension after

Mr. Newsome failed to comply with his manager’s directions. Specifically, the Agency

alleged that he failed to heed his manager’s repeated requests to submit particular

documents to her. In addition, he was charged with failing to sign off his computer

when he left his work station, as required by security procedures and by his manager’s

directive.

       Mr. Newsome appealed his suspension to the Board in January of 2008. In a

pretrial conference, the Administrative Judge (“AJ”) determined Mr. Newsome’s failure

to follow directions “by its very nature, is related to the efficiency of the service.”

Consequently, the AJ found that a nexus existed between the alleged misconduct and

the Agency’s efficiency.

       On April 21, 2008, the AJ affirmed the Agency’s action. First, he found that

Mr. Newsome violated the settlement agreement by refusing to follow his manager’s

directives, and sustained Mr. Newsome’s suspension. Moreover, the AJ determined

that the suspension promoted the efficiency of the Agency’s service, relying on his prior

finding of nexus while further finding that the suspension was a reasonable penalty.

       The Board denied Mr. Newsome’s petition for review and entered a final order on

August 4, 2008. Mr. Newsome timely appealed.

       We have jurisdiction under 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The scope of our review of a decision by the Board is limited. We may 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,




2009-3019                                   3
rule, or regulation having been followed; or (3) unsupported by substantial

evidence. . . .” 5 U.S.C. § 7703(c); see Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380,

1381 (Fed. Cir. 2004).

       To implement an adverse action that was withheld pursuant to a settlement

agreement, an agency must show by a preponderance of the evidence that the

employee breached the agreement. 5 C.F.R. § 1201.56(a)(ii); cf. Stewart v. U.S. Postal

Serv., 926 F.2d 1146, 1148 (Fed. Cir. 1991) (holding that the Board must resolve non-

frivolous factual issues regarding compliance with a settlement agreement before

addressing a waiver of appeal rights). The Board’s factual findings must be upheld

when they are supported by substantial evidence. Brown v. Dep’t of the Navy, 229 F.3d

1356, 1363 (Fed. Cir. 2000). The AJ found that Mr. Newsome breached the agreement

by failing to follow his manager’s directions when he did not submit documents that she

repeatedly requested.    Relying on Mr. Newsome’s acknowledgment that he did not

submit certain requested documents, the AJ determined that the Agency had shown by

a preponderance of the evidence that Mr. Newsome had failed to follow directions.

There is no evidence in the record to support Mr. Newsome’s argument that he timely

delivered the documents when so directed. Accordingly, the AJ’s determination that

Mr. Newsome failed to follow directions and, thus, breached the settlement agreement

was neither arbitrary nor capricious.

       In addition, the Board did not abuse its discretion by sustaining the Agency’s

suspension of Mr. Newsome. An agency must establish three elements to withstand a

challenge to an adverse action against an employee.         First, it must prove by a

preponderance of the evidence that the alleged conduct occurred. 5 U.S.C. § 7701(c)




2009-3019                                  4
(1)(B). Second, it must establish a nexus between the conduct and the efficiency of the

agency. 5 U.S.C. § 7513(a). Third, it must demonstrate that the penalty is reasonable.

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 302-303 (1981).

      First, the AJ found that Mr. Newsome failed to follow the management

instructions in regards to both specifications alleged in the notice for proposed adverse

action. In sustaining the specification that he failed to comply with the clean desk

policy, the AJ relied on Mr. Newsome’s acknowledgement that he neglected to properly

store his work on at least one occasion.       Similarly, based on Mr. Newsome’s own

acknowledgment that he contacted a policy analyst with questions, the AJ sustained the

second specification that alleged Mr. Newsome failed to follow his manager’s directives

to contact his lead with such inquiries.   Given Mr. Newsome’s confirmation of both

allegations, the AJ’s finding was supported by substantial evidence.

      Further, the AJ did not abuse his discretion when he held that the thirty-day

suspension was reasonable. An agency’s adverse action should be sustained if the

agency establishes a nexus between the misconduct and the efficiency of the agency’s

service and shows that the penalty is reasonable. Allred v. Dep’t of Health & Human

Servs., 786 F.2d 1128, 1130 (Fed. Cir. 1986). The AJ first determined that a nexus with

the Agency’s efficiency was established because a failure to follow directions, “by its

very nature,” affects the efficiency of service. A nexus may be established by showing

that the employee’s misconduct interfered with or adversely affected the agency’s

mission.    See id. at 1131.    Further, “[f]ailure to follow instructions or abide by

requirements affects the agency’s ability to carry out its mission. Blevins v. Dep’t of

Army, 26 M.S.P.R. 101, 104 (1985), aff’d, 790 F.2d 95 (Fed. Cir. 1986). Thus, “there is




2009-3019                                  5
a causal connection between an employee's refusal to comply with what the agency

believes are properly promulgated instructions and the efficiency of the service.” Id.;

see also Watson v. Dep’t of Transp., 49 M.S.P.R. 509, 516 (1991) (“It is well established

that refusal to follow proper instructions adversely affects the efficiency of the service.”).

As discussed above, because substantial evidence supports the finding that

Mr. Newsome failed to follow directions that were promulgated by the Agency and his

manager, there was no abuse of discretion in finding a nexus between his misconduct

and the efficiency of service.

       Further, the Board did not abuse its discretion when it affirmed the

reasonableness of the thirty-day penalty.         The Board may only review a penalty

imposed by an agency to determine if the agency considered all relevant factors and

exercised managerial judgment “within tolerable limits of reasonableness.”               See

Douglas, 5 M.S.P.R. at 302. The Agency considered Mr. Newsome’s fifteen years of

service, but it determined that other factors, particularly his prior disciplinary actions,

justified the suspension.     Accordingly, there was appropriate consideration of the

relevant Douglas factors to establish that the penalty was reasonable. Thus, there was

no abuse of discretion in determining that the Agency appropriately considered the

relevant factors.

       For these reasons, the decision of the Board is affirmed.

       No costs.




2009-3019                                     6
