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
05-3090
ALBERTO R. ALBERTO,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
_____________________
DECIDED: June 10, 2005
_____________________
Before LOURIE, SCHALL, and BRYSON, Circuit Judges.
PER CURIAM.
Alberto R. Alberto seeks review of the final decision of the Merit Systems
Protection Board sustaining his removal by the Department of Veterans Affairs (“VA”).
Alberto v. Dep’t of Veterans Affairs, No. DE-0752-03-0468-I-1 (M.S.P.B. Nov. 23, 2004).
We affirm.
DISCUSSION
Alberto was removed from his position as a supervisor at a VA health care facility
after an investigation revealed nineteen misconduct specifications establishing that he
had repeatedly engaged in a pattern of inappropriate and offensive misconduct towards
several female employees at the facility. Appealing his removal to the Board, Alberto
advanced two affirmative defenses: (1) the official who imposed the removal penalty
had been improperly influenced; and (2) rather than offensive misconduct, the agency
had effectively charged Alberto with the greater offense of sexual harassment, which it
failed to prove.
While sustaining, in whole or in part, fourteen of the nineteen misconduct
specifications and rejecting Alberto’s affirmative defenses, the Administrative Judge
(“AJ”) mitigated the penalty to a demotion, reasoning that removal was unreasonably
harsh given his positive work record, lack of prior discipline, and rehabilitative potential.
The agency petitioned for review of the AJ’s decision by the full Board, and Alberto
cross-petitioned, reasserting one of his affirmative defenses. Reversing the mitigation
ruling and denying Alberto’s cross-petition, the full Board reinstated the penalty of
removal, holding that it found no error in the agency’s conclusion that Alberto’s repeated
misconduct warranted removal, and that the AJ had erroneously substituted his
judgment for that of the agency. This appeal followed. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an
abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000). We discern none of these grounds for reversal.
On appeal, Alberto’s arguments amount to an invitation for us to re-weigh the
evidence and to consider issues that have not been presented to the Board. As an
appellate tribunal, we can do neither. See Bieber v. Dep’t of the Army, 287 F.3d 1358,
1364 (Fed. Cir. 2002); see also Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101
(Fed. Cir. 1985).
05-3090 2
Alberto’s arguments range from asserting that all relevant evidence was not
included, proper procedures were not followed, a nexus between the charges and the
efficiency of the service was not established, all relevant factors were not weighed in
making the decision, the Board unfairly credited the deciding official, and the AJ
considered circumstances outside of the charges.
We have considered all these arguments, including the underlying facts, and
conclude that they do not justify reversal. The Board had substantial evidence for its
decision and its procedures were not deficient. Moreover, our review of the penalty
imposed by the agency is highly deferential. See Bieber, 287 F.3d at 1365.
Accordingly, we must affirm.
05-3090 3
Alberto v. Dept. Of Veterans Affairs
Combined Opinion