Unpublished Dispositionana M. Ortiz, Petitioner, v. Department of Health and Human Services, Respondent, 824 F.2d 980 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 824 F.2d 980 (Fed. Cir. 1987) June 19, 1987

Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge.

BALDWIN, Senior Circuit Judge.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. NY07528610236, removing Ana M. Ortiz (petitioner) from the position of field representative with the Social Security Administration on the basis of insubordination and absence without leave, is affirmed.

OPINION

Petitioner has challenged removal as so harsh and disproportionate to the offense as to constitute an abuse of discretion. The charges are not challenged.

The choice of penalty for employee misconduct is left to the sound discretion of the agency. The court will defer to the agency's choice of penalty unless its severity appears "totally unwarranted." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984).

In light of the gravity of the charges sustained against petitioner, we find no abuse of discretion. The board has analyzed the relevant factors and determined that the penalty is within the bounds of reasonableness and bears a nexus to promoting the efficiency of the service. The board's decision is supported by substantial evidence and is not arbitrary, capricious, obtained without procedures required by law, rule or regulation, or otherwise not in accordance with law. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).