James R. Ogilvie, Petitioner, v. Department of Defense, Respondent, 883 F.2d 1026 (Fed. Cir. 1989)

DECISION

James R. Ogilvie seeks review of the final decision of the Merit Systems Protection Board, No. PH04328810303, sustaining the Department of Defense's decision to remove him from his position as a Property Disposal Officer, GS-1104-12, for unsatisfactory performance under 5 U.S.C. § 4303(a) (1982). We affirm.

OPINION

Having reviewed the entirety of the record before us, and considered all of Mr. Ogilvie's arguments, we must affirm the MSPB's decision. We are unpersuaded that the agency's decision to remove Mr. Ogilvie was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1982); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

While it is regrettable that the agency was unable to reassign petitioner to a lower grade position, its efforts to do so cannot be faulted.

The board correctly held that it has no authority in a Chapter 43 removal to mitigate the penalty. See Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985), cert. denied, 106 S. Ct. 1514 (1986). This panel is bound by the same precedent.