NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3035
LORI E. VALDEZ,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Lori E. Valdez, of Portsmouth, Virginia, pro se.
Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Brian M. Simkin, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2010-3035
LORI E. VALDEZ,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Petition for review of the Merit Systems Protection Board
in case no. DC0752090339-I-1.
__________________________
DECIDED: March 17, 2010
__________________________
Before NEWMAN, CLEVENGER and LINN, Circuit Judges.
PER CURIAM.
Lori E. Valdez seeks review of the final decision of the Merit Systems Protection
Board ("Board") sustaining her removal for unauthorized use of a crime information
database. Valdez v. Dep't of the Navy, No. DC0752090339-I-1 (Sept. 29, 2009). We
affirm.
I
Ms. Valdez was employed by the Department of the Navy ("agency") in the Naval
Criminal Investigative Service ("NCIS"), which is a federal law enforcement agency with
the combined missions of providing law enforcement, counterintelligence, and security
for Department of the Navy personnel and installations worldwide. Pursuant to an
agreement with the Federal Bureau of Investigation ("FBI"), NCIS has access to FBI
criminal investigation databases, including the National Crime Information Center
("NCIC").
Ms. Valdez admits that on August 18, 2008, she misused her access to the NCIC
database to run a criminal history inquiry on her husband for her personal benefit, not
as a part of her official duties and without permission or authority from the agency. Her
husband needed a clean criminal history record for a job application, and he needed a
job to qualify for a mortgage on a home that would allow her ill father to move in.
Ms. Valdez deemed it necessary to expedite this interrelated situation by unauthorized
access to NCIC. When questioned about her conduct, she stated to her direct
supervisor: "desperate times call for desperate measures." Her second line supervisor,
Samuel G. Worth, initially recommended that, at a minimum, she be reprimanded and
suspended for up to 14 days. Mr. Worth stated that "[g]iven her indifference to the
standing policy in this instance, it is not a stretch to believe that she will again violate
existing rules and guidelines when faced with another desperate personal situation."
Mr. Worth subsequently reported to the deciding official in the case, Ronald Possanza,
that he had lost confidence in Ms. Valdez and recommended her removal.
Mr. Possanza recommended removal as the penalty for the admitted wrongful
access of the NCIC database. His proposal recited the admitted violation, the loss of
faith in her by her superiors about her judgment and integrity, and the supervisor's belief
that she would again violate rules when faced with another desperate personal
situation.
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In response to the notice of proposed removal, Ms. Valdez stated that she knew
what she did was wrong and warranted punishment. She apologized and stated "[t]his
will never happen again." She met with the deciding official to provide an oral reply, and
at that time again stated that she would not repeat her action. She volunteered,
towards the end of her meeting with the deciding official, that "the only thing that would
sway her was her family. What would she do the next time her family was in danger—
she didn't know—she couldn't say."
On February 5, 2009, Mr. Possanza issued his notice of removal. He found that
Ms. Valdez had accessed the NCIC database without authorization for her own
personal benefit. He explained his consideration of the Douglas factors, noting her
previous service commendations and acceptable level of service, the stressful
conditions under which she acted (noting that "stress does not excuse your conduct"),
and the potentially serious effect on the agency's agreement with the FBI as a result of
misuse of its database. He noted that her chain of command questioned her judgment,
reliability and trustworthiness, and the loss of faith in her ability to exercise good
judgment. Mr. Possanza emphasized Ms. Valdez's comment that she was not sure
what she might do in a case of extreme family need. He concluded that "[y]our
statements show that you are not a viable candidate for rehabilitation." He decided that
there was no other place in the agency to which she could be assigned, and therefore
that no other penalty but removal would be "adequate to address this matter."
2010-3035 3
II
Ms. Valdez appealed her removal to the Board. The Administrative Judge
assigned to her case held a hearing at which Ms. Valdez testified, along with her first
line supervisor, Mr. Worth, and Mr. Possanza. Ms. Valdez admitted that she had
engaged in intentional misuse of government property (the formal charge against her).
Assisted by counsel at the hearing, she argued that her punishment should be mitigated
down from removal. Mr. Possanza agreed that many of the Douglas factors favored
Ms. Valdez. He emphasized, however, that her violation had potentially jeopardized the
agreement between the agency and the FBI, that she had lost the confidence of the
chain of command, and that she had left open the possibility of committing the same
kind of misconduct in the future. Mr. Possanza stated that his penalty of removal was
reasonable in the circumstances of this case.
Ms. Valdez argued that her case should be treated similarly with another agency
employee who had intentionally violated agency rules by leaving classified documents
unattended. Removal had been proposed for the other employee, but the penalty was
mitigated to reassignment and demotion when the deciding official in that case
determined that the employee was a candidate for rehabilitation in another position.
The Administrative Judge noted that the Board does not second guess an
agency's judgment with regard to the discipline of its employees. The Board's role is to
assure that managerial judgment has been exercised within the tolerable limits of
reasonableness, as tested by the deciding official's assessment of the Douglas factors.
Because the deciding official, in his removal notice and testimony, carefully considered
each of the Douglas factors, finding many in Ms. Valdez's favor, but importantly finding
2010-3035 4
her not to be a viable candidate for rehabilitation, the Administrative Judge concluded
that the agency had justified the penalty of removal.
Ms. Valdez unsuccessfully sought review from the full Board, and timely
petitioned for review in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
III
Our review of the final decision of the Board is prescribed by statute. We may
only upset a final Board decision if we determine that it is arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with law. 5 U.S.C. § 7703(c).
In this case, the only question is whether the agency justified the penalty of
removal. When an agency has improperly applied the Douglas factors in selecting a
penalty, it has abused its discretion. "Determination of an appropriate penalty is a
matter committed primarily to the sound discretion of the employing agency. This court
defers to an agency's choice of penalty unless the penalty exceeds the range of
permissible punishment . . . , or unless the penalty is so harsh and unconscionably
disproportionate to the offense that it amounts to an abuse of discretion." Zingg v. Dep't
of the Treasury, 388 F.3d 839, 843 (Fed. Cir. 2004) (quoting Brook v. Corrado, 999 F.2d
523, 528 (Fed. Cir. 1993)). See also DeWitt v. Dep't of the Navy, 747 F.2d 1442, 1445
(Fed. Cir. 1984) ("This court will not disturb the agency's choice unless the severity of its
action appears totally unwarranted in the light of the relevant [Douglas] factors.")
Because many of the Douglas factors would support mitigation of the removal
penalty, and in the light of the extreme family circumstances that prompted Ms. Valdez's
action, we called for the full record in this case, including the recording of the hearing
before the Administrative Judge.
2010-3035 5
We have carefully reviewed the entire record in light of Ms. Valdez's arguments
to us that the agency misapplied the Douglas factors in refusing to mitigate her penalty.
She argues that the agency's abuse of discretion should have been corrected by the
Administrative Judge, whose decision became the final decision of the Board when it
declined to review the case.
We see no error in the assessment of the record by the Board and find no basis
to conclude that Ms. Valdez's removal is "totally unwarranted." We therefore affirm the
final decision of the Board.
COSTS
No costs.
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