United States Court of Appeals
for the Federal Circuit
__________________________
JEFFREY B. NORRIS,
Petitioner,
v.
SECURITIES AND EXCHANGE COMMISSION,
Respondent.
__________________________
2011-3129
__________________________
Petition for review of an arbitrator’s decision in case
no. SEC-AR-09-005 by Daniel M. Winograd.
___________________________
Decided: April 10, 2012
___________________________
MICHAEL J. KATOR, Kator, Parks & Weiser, P.L.L.C.,
of Washington, DC, argued for petitioner. With him on
the brief was ADAM J. CASNER, of Austin, Texas.
TARA K. HOGAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief was
JUANITA C. HERNANDEZ, Senior Counsel, Securities &
Exchange Commission, of Washington, DC.
NORRIS v. SEC 2
__________________________
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
DYK, Circuit Judge.
Jeffrey B. Norris (“Norris”) petitions for review of an
arbitrator’s decision affirming his removal from his posi-
tion as a Trial Attorney with the Securities and Exchange
Commission (“SEC”). U.S. Sec. & Exch. Comm’n v. Nat’l
Treasury Emps. Union Chapter 293, No. SEC-AR-09-005
(Apr. 19, 2011) (Winograd, Arb.) (“Arbitration Decision”).
Because we hold that the arbitrator erroneously failed to
consider new evidence bearing upon the reasonableness of
Norris’s removal, we vacate and remand.
BACKGROUND
Norris served as a Trial Attorney with the SEC from
February 23, 1992, until he was removed on August 28,
2009. Before the events leading to his removal, discipline
was initiated against Norris for exercising poor judgment
and misuse of government email on two separate occa-
sions. In 2007, Norris was suspended from service with-
out pay for one day for exercising poor judgment in
emailing an attorney who represented a witness in an
ongoing SEC case, and expressing his opinion about the
merits of the case. Thereafter, from March to May 2007,
Norris exchanged a series of antagonistic emails from his
SEC email account, and in which he identified himself as
SEC trial counsel, with businessman Mark Cuban, owner
of the Dallas Mavericks professional basketball team.
Based on this exchange, Norris was suspended without
pay for fourteen calendar days due to his misuse of gov-
ernment email.
The removal here was based on three additional
emails sent in 2008. On September 11, 2008, Norris sent
3 NORRIS v. SEC
an email to the Washington Post from his SEC email
account in which he identified himself as Senior Trial
Counsel and expressed certain political views. On Octo-
ber 19, 2008, Norris sent an email to two supervisors and
three members of the support staff in which he demeaned
the support staff and implied that they were incompetent
at performing their job duties. Finally, on October 23,
2008, Norris emailed a confidential suspicious activity
report (“SAR”) to an appointed receiver and his counsel in
violation of SEC policies. 1
On May 22, 2009, the SEC sent Norris a notice of pro-
posed removal which proposed to remove him based on
the three emails sent in 2008, and recounted the prior
emails which had led to the previous disciplinary actions
against him. Norris responded, urging that his actions in
connection with the 2008 emails were influenced by
several personal circumstances, including his wife’s
becoming fully disabled, his daughter’s suffering from
Asperger’s Disorder, and Norris’s adult Attention Deficit
Hyperactivity Disorder (“AD/HD”). On August 19, 2009,
the deciding official, Rose Romero (“Romero”), informed
Norris that she had decided to remove him effective
August 28, 2009, for misuse of government equipment by
sending unauthorized or inappropriate emails. In the
decision, Romero stated that “because of [Norris’s] contin-
ued inappropriate and/or unauthorized emails [she had]
lost confidence that [he could] effectively perform [his]
assigned duties.” J.A. 118. Romero also noted that she
1 A SAR is a report filed by a financial institution
with a federal law enforcement agency in which the
institution discloses known or suspected violations of
federal law or suspicious monetary transactions. Because
a SAR may result in a criminal investigation, SARs and
any information that would reveal the existence of a SAR
are required to be kept strictly confidential. See 12 C.F.R.
§ 21.11.
NORRIS v. SEC 4
had considered Norris’s explanation that his behavior
stemmed from his AD/HD and the effect of the medical
conditions of his wife and daughter, but nevertheless
concluded that Norris did “not have the potential for
rehabilitation because prior disciplinary actions have not
prevented [his] impulsive and improper e-mails.” Id.
The union submitted Norris’s removal to arbitration
pursuant to the terms of the collective bargaining agree-
ment with the SEC. A hearing was held before an arbi-
trator on November 18-19, 2010. There was no dispute
that Norris had engaged in the behavior that led to his
removal or that his actions constituted improper conduct.
The focus was primarily on whether removal was a rea-
sonable penalty. During the hearing, the arbitrator
received testimony from six witnesses, including Romero
and Norris. Although the incident was not mentioned in
the notice of proposed removal, Romero testified in re-
sponse to questioning from the agency’s counsel that
sometime before the termination proceeding, she had
learned that Norris had a confrontation with agency
commissioners in 2007 and that he was therefore barred
from presenting cases to commissioners in the future. 2
Romero also testified that Norris’s conduct in connection
with this incident and the subsequent presentations bar
had “a direct impact on how that attorney . . . is able to
perform his duties.” J.A. 139. In mitigation of the
charges against him, Norris presented evidence that his
personal circumstances had improved in early 2009, so
that the improper conduct was unlikely to recur in the
future. Norris testified that his daughter was placed in a
special program to cater to her needs due to her Asper-
2 During the hearing, Norris testified that he had
never been barred from presenting cases to the commis-
sioners and did not recall the confrontation that was
alleged to have led to the bar.
5 NORRIS v. SEC
ger’s Disorder and had begun taking a new medication
that caused her to show significant improvement, and
that his wife’s condition had also improved. Norris’s
psychiatrist testified that Norris began taking medication
for his AD/HD in June of 2009, and also had begun at-
tending adult AD/HD support groups. Norris’s psychia-
trist expressed his opinion that in the future, Norris was
unlikely to send emails such as those that had formed the
basis of his removal, due in part to his treatment and also
to the fact that his primary “stressors” (the medical
conditions of his wife and daughter) had been alleviated.
On April 19, 2011, the arbitrator issued a decision af-
firming Norris’s removal and concluding that “Romero did
not abuse her discretion as a manager in making the
decision to remove [Norris] from the service.” Arbitration
Decision, slip op. at 59. In reaching this conclusion, the
arbitrator considered each of the twelve “Douglas factors”
to assess whether Norris’s removal was an appropriate
penalty. See Douglas v. Veterans Admin., 5 M.S.P.B. 313,
331-32 (1981) (setting forth the factors relevant in deter-
mining the appropriateness of a penalty). In considering
“the effect of the offense upon the employee’s ability to
perform at a satisfactory level and its effect upon supervi-
sors’ confidence in the employee’s ability to perform
assigned duties” (Douglas factor 5), id. at 332, the arbitra-
tor concluded that this factor was “neutral,” Arbitration
Decision, slip op. at 52. The arbitrator relied on Romero’s
testimony that Norris’s aggressive behavior had caused
him to be barred from presenting cases to commissioners
and that she had lost confidence in Norris’s ability to
maintain confidential information or good working rela-
tionships with other staff members. Id.
In assessing the “potential for the employee’s rehabili-
tation” (Douglas factor 10), Douglas, 5 M.S.P.B. at 332,
the arbitrator noted that this factor was one of “the most
NORRIS v. SEC 6
difficult considerations,” Arbitration Decision, slip op. at
55. The arbitrator stated that “[i]f sympathy were the
sole deciding factor in this case, the arbitrator would
conclude that grievant should be reinstated to his former
position.” Id. at 57. The arbitrator also recounted that
Norris’s psychiatrist had testified that Norris’s course of
treatment had “improved [Norris’s] impulse control” and
would “prevent[] further transgressions,” and noted that
the medical conditions of Norris’s wife and daughter had
improved, alleviating much of the stress from which he
had previously suffered. Id. at 56-57. Nonetheless, the
arbitrator found that “[t]he issue before the arbitrator is .
. . whether Romero’s decision, based upon the facts and
circumstances known to her at the time, was within ‘toler-
able limits of reasonableness,’” and thus declined to
consider these post-removal events in rendering a deci-
sion. Id. at 57-58 & n.17 (emphasis added).
Norris timely appealed to this court. We have juris-
diction pursuant to 5 U.S.C. §§ 7121(f) and 7703.
DISCUSSION
Under 5 U.S.C. § 7121(f), we review a decision by an
arbitrator “in the same manner and under the same
conditions as if the matter had been decided by the [Merit
Systems Protection] Board”; and our review of Merit
Systems Protection Board (“Board”) decisions is limited.
We may only set aside agency actions, findings, or conclu-
sions that we find to be “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see
also Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218
(Fed. Cir. 2011). We review questions of law de novo.
7 NORRIS v. SEC
Chambers v. Dep’t of the Interior, 602 F.3d 1370, 1375
(Fed. Cir. 2010).
I
Relying on this court’s recent decision in Ward v. U.S.
Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), Norris first
argues that both Romero and the arbitrator improperly
considered ex parte information that Norris had engaged
in a confrontation that led to his being barred from pre-
senting cases before the commissioners. This alleged
confrontation and resulting bar had not been included in
Norris’s notice of proposed removal.
The pertinent regulation provides that “[i]n arriving
at its decision, the agency will consider only the reasons
specified in the notice of proposed action and any answer
of the employee or his or her representative, or both,
made to a designated official . . . .” 5 C.F.R.
§ 752.404(g)(1). In Ward, we held that “[e]x parte com-
munications that introduce ‘new and material informa-
tion,’ whether material to the merits of the underlying
charge or material to the penalty to be imposed, violate
due process,” and explained that consideration of ex parte
communications is a procedural error in violation of
section 752.404. 634 F.3d at 1280-81. Ward involved a
postal worker who had been removed from the federal
service. Ward’s notice of proposed removal informed him
that the basis for his removal was a single, isolated inci-
dent in which Ward had engaged in improper conduct
towards his supervisor. Id. at 1276. Ward appealed his
removal to the Board. At the hearing before the Board,
the deciding official testified that he had considered not
only the incident that was the subject of the notice of
proposed removal, but also prior incidents that had been
relayed to him by other supervisors in which Ward had
acted in a similarly inappropriate manner. Id. In par-
NORRIS v. SEC 8
ticular, the deciding official specifically “admitted that
Ward’s ‘recurring pattern of behavior’ affected his analy-
sis of two Douglas factors, lowering the Deciding Official’s
confidence in Ward’s ability to satisfactorily perform his
duties and convincing the Deciding Official that Ward
showed no potential for rehabilitation.” Id. We held that
“[a]t worst, the Deciding Official’s ex parte communica-
tions violated Ward’s due process rights” and “[a]t a
minimum, the Deciding Official’s consideration of alleged
past misconduct that was not included in the Notice of
Proposed Removal violated Agency procedure.” Id. at
1278. Thus, we remanded Ward’s case to the Board to
“analyze whether the Deciding Official’s ex parte commu-
nications violated Ward’s due process rights by introduc-
ing new and material information”; and if not, “whether
the Agency’s procedural error, considering Ward’s alleged
prior misconduct that was not included in his Notice of
Proposed Removal, was harmful error.” Id. at 1282-83;
see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir.
1999) (“The introduction of new and material information
by means of ex parte communications to the deciding
official undermines the public employee’s constitutional
due process guarantee of notice (both of the charges and of
the employer’s evidence) and the opportunity to re-
spond.”).
Norris argues that his case is analogous to Ward be-
cause Romero, the deciding official, admitted during the
arbitration hearing that she had been aware of prior
conduct (Norris’s alleged confrontation with commission-
ers and resulting bar) that had not been included in the
notice of proposed removal and that this prior conduct
contributed to her conclusion that she had lost confidence
in Norris’s ability to perform his assigned duties (Douglas
factor 5).
9 NORRIS v. SEC
As Norris’s counsel conceded at oral argument, a de-
ciding official’s mere knowledge of prior misconduct by the
employee obtained before the commencement of discipli-
nary proceedings does not constitute an improper ex parte
communication. See Oral Argument at 1:55-2:33, Norris
v. Sec. & Exch. Comm’n, No. 2011-3129 (Fed. Cir. Feb. 10,
2012), available at http://www.cafc.uscourts.gov/oral-
argument-recordings/2011-3129/all. There is nothing
inherently wrong with a deciding official’s having back-
ground knowledge of an employee’s prior work history or
performance record. Nothing in the regulations limits the
deciding official to being a neutral arbiter or requires that
the deciding official be unfamiliar with the individual, the
facts of the case, or the employee’s prior conduct. A
deciding official’s knowledge of an employee’s background
only raises due process or procedural concerns where that
knowledge is a basis for the deciding official’s determina-
tions on either the merits of the underlying charge or the
penalty to be imposed. See Ward, 634 F.3d at 1280.
Here, viewing the record as a whole, it is clear that
Romero testified only to her knowledge of the prior inci-
dent. She did not, as Norris contends, testify that this
incident played any role in her decision to impose re-
moval. She simply testified that this conduct has an
impact on how an attorney is able to perform his duties.3
3 During the arbitration hearing, Romero was
called as a rebuttal witness for the agency and testified as
follows regarding Norris’s alleged confrontation with
commissioners in 2007:
Q: And his conduct would be described as what?
A: Confrontational to the commissioners.
Q: Okay. Now, would that bar and – and that
conduct be something that would be some-
thing that you would want to see in a trial at-
torney?
NORRIS v. SEC 10
She also testified that, in deciding to remove Norris, she
had not considered information that had not been in-
cluded in the notice of proposed removal. Thus, unlike
Ward where the deciding official explicitly admitted to
considering information not included in the notice of
proposed removal in weighing two of the Douglas factors,
here Romero never indicated that her knowledge of Nor-
ris’s prior misconduct had influenced her consideration of
the Douglas factors or weighed on her ultimate decision to
remove Norris. We conclude that there is no evidence
that Romero improperly considered ex parte information
in determining the penalty to be imposed.
Norris also contends that the arbitrator erred in rely-
ing on the ex parte information concerning the alleged
confrontation with commissioners introduced through
Romero’s testimony in sustaining Norris’s removal. In
weighing the effect of the offense on the employee’s ability
to perform his job and on his supervisors’ confidence in
the employee’s abilities (Douglas factor 5), the arbitrator
relied on the fact that “[Norris’s] aggressive approach and
attitude . . . had resulted in an order by the Commission
that [Norris] would not be allowed to orally present case
summaries to the Commission.” Arbitration Decision, slip
op. at 52. However, the arbitrator also considered other
evidence in weighing Douglas factor 5. In addition to the
allegation that Norris had been barred from presenting
cases to the commissioners, the arbitrator also relied on
testimony by Romero and another supervisor that they
had lost confidence in Norris’s ability to maintain confi-
dential information and to have good working relation-
A: Well, I think it has a direct impact on how
that attorney performs his – is able to perform
his duties.
J.A. 139.
11 NORRIS v. SEC
ships with other members of the workforce based upon
conduct that had been included in the notice of proposed
removal. The arbitrator then weighed this adverse evi-
dence against Romero’s favorable testimony that Norris
had continued to be an effective litigator throughout his
term of employment, to determine that Douglas factor 5
was a “neutral” factor in assessing an appropriate pen-
alty.
It is far from clear that the arbitrator’s consideration
of Norris’s 2007 conduct played a significant role in the
arbitrator’s decision to sustain Norris’s removal; the
arbitrator’s consideration of the conduct, while improper,
may well have been harmless error. In light of the re-
mand based upon the procedural error discussed below,
we need not decide whether the arbitrator’s error was
harmless error. However, on the remand the arbitrator
should not consider information not included in the notice
of proposed removal in assessing whether the removal
was reasonable.
II
Norris next argues that the arbitrator erroneously
failed to consider post-removal evidence presented at the
hearing regarding Norris’s AD/HD treatment, the im-
proved medical conditions of his wife and daughter, and
Norris’s psychiatrist’s conclusion that the improper con-
duct was unlikely to be repeated. In response, the gov-
ernment contends that allowing the arbitrator to consider
this post-removal evidence would require the arbitrator to
substitute his judgment for that of the agency. We ad-
dress whether the arbitrator was obligated to consider
new, post-removal evidence in mitigation of the penalty
that was not before the deciding official.
Arbitrators, like the Board, must review de novo the
merits of an agency’s decision to take adverse action
NORRIS v. SEC 12
against an employee; i.e., the Board determines de novo
the underlying facts of the case such as whether the
employee engaged in the alleged misconduct and whether
the agency exceeded its authority in determining that the
employee’s misconduct would adversely affect the effi-
ciency of the service. Brook v. Corrado, 999 F.2d 523, 528
(Fed. Cir. 1993); see Doe v. Dep’t of Justice, 565 F.3d 1375,
1382 (Fed. Cir. 2009); Jackson v. Veterans Admin., 768
F.2d 1325, 1329 (Fed. Cir. 1985). The requirement of de
novo review stems from the mandate that “the decision of
the agency shall be sustained . . . only if the agency’s
decision . . . is supported by a preponderance of the evi-
dence.” 5 U.S.C. § 7701(c)(1); see also Jackson, 768 F.2d
at 1329. Thus in Brook, we held that because the pro-
ceeding on the merits is de novo, “all evidence obtained up
to the time of hearing is admissible.” 999 F.2d at 528.
Accordingly, we “must review the agency action based on
the record made to the [Board] and the [Board] findings,
rather than review the agency action solely on the basis of
the agency’s record.” Jackson, 768 F.2d at 1329 n.4.
The penalty question here involves a different stan-
dard of review from the merits determination; i.e., review
is not de novo. The “determination of an appropriate
penalty is a matter committed primarily to the sound
discretion of the employing agency.” Brook, 999 F.2d at
528 (quoting Beard v. Gen. Servs. Admin., 801 F.2d 1318,
1322 (Fed. Cir. 1986)); see also Lachance v. Devall, 178
F.3d 1246, 1251-52 (Fed. Cir. 1999). “The Board’s role in
[assessing the penalty] is not to insist that the balance be
struck precisely where the Board would choose to strike it
if the Board were in the agency’s shoes in the first in-
stance.” Douglas, 5 M.S.P.B. at 332. Rather, the Board’s
review “is essentially to assure that the agency did con-
scientiously consider the relevant factors and did strike a
13 NORRIS v. SEC
responsible balance within tolerable limits of reasonable-
ness.” Id.; see also Lachance, 178 F.3d at 1256-57.
Since the Board’s review is designed to determine
whether the agency’s action was reasonable, it can be
argued that such a determination limits the Board’s
review to the evidence before the agency at the time of its
decision. After all, a court’s review of agency action to
determine whether it was arbitrary and capricious is
typically limited to review of the agency record. 4 But we
think that the Board’s function is different from that of a
reviewing court. Under 5 U.S.C. § 7701(c)(1), Congress
required that the Board develop a new record. The Board
must review the agency’s action based on the new record.
§ 7701(c)(1). In enacting this provision, Congress clearly
contemplated that the new record would extend to all
aspects of the case. “The Committee amended
[§§ 7701(b)-(c)] to make it absolutely clear that an em-
ployee would receive a full evidentiary hearing in any case
where there is a dispute as to any genuine and material
issue of fact . . . .” S. Rep. No. 95-969, at 53-54 (1978),
reprinted in 1978 U.S.C.C.A.N. 2723, 2775-76 (emphasis
added); see also H.R. Rep. No. 95-1717, at 137 (1978)
(Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 2860, 2871
4 See, e.g., Vt. Yankee Nuclear Power Corp. v. Natu-
ral Res. Def. Council, Inc., 435 U.S. 519, 555 (1978)
(“[T]he role of a court in reviewing the sufficiency of an
agency’s consideration of environmental factors is a
limited one, limited both by the time at which the decision
was made and by the statute mandating review.” (empha-
sis added)); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n,
357 F.3d 1294, 1316 (Fed. Cir. 2004) (“[I]f litigants could
demand rehearing as a matter of law because of new
circumstances, new trends or new facts, ‘there would be
little hope that the administrative process could ever be
consummated in an order that would not be subject to
reopening.’” (quoting Vt. Yankee, 435 U.S. at 554-55)).
NORRIS v. SEC 14
(“[T]he employee is entitled to a hearing on appeal to the
Merit Systems Protection Board.”). Given the Board’s
duty to conduct an independent assessment of the Doug-
las factors to determine the reasonableness of the penalty,
see Douglas, 5 M.S.P.B. at 332-33, we see no reason to
distinguish between requiring the Board to consider new
evidence relating to the agency’s decision on the merits of
the underlying misconduct and requiring the Board to
consider new evidence regarding the reasonableness of
the penalty imposed. Thus, we think new evidence, even
on the question of penalty, should be considered by the
Board (subject to the employee’s right to notice of the
basis for the removal described above).
The Board has consistently recognized its obligation
to consider new evidence affecting the penalty determina-
tion in weighing the Douglas factors. 5 And in Malloy v.
5 See, e.g., Sherlock v. Gen. Servs. Admin., 103
M.S.P.R. 352, 355, 357 (2006) (acknowledging that “the
Board may consider an appellant's medical condition in
determining the appropriate penalty” even where the
evidence of the condition was presented for the first time
before the Board); Singletary v. Dep’t of the Air Force, 94
M.S.P.R. 553, 560 (2003) (“Although the Board has found
that an appellant’s failure to bring a mitigating factor to
an agency’s attention does not prohibit an AJ from con-
sidering that factor, the Board has noted that such failure
merely affects the weight of the factor.”); Frye v. Dep’t of
the Army, 63 M.S.P.R. 242, 246 (1994) (according “signifi-
cant probative weight” to a medical report received post-
removal where the report reflected treatment over a
substantial period of time); Tactay v. Dep’t of the Navy, 30
M.S.P.R. 363, 367-68 (1986) (considering a removed
employee’s successful post-removal completion of a reha-
bilitation program and determining that the employee’s
removal “exceed[ed] the bounds of reasonableness”);
Bryant v. Gen. Servs. Admin., 23 M.S.P.R. 425, 427 (1984)
(“The failure to bring mitigating factors to the agency's
attention merely affects the weight attached to them.”);
15 NORRIS v. SEC
United States Postal Service, 578 F.3d 1351 (Fed. Cir.
2009), we impliedly decided this very question. Malloy
involved a United States Postal Service (“USPS”) worker
who had been removed from service due to a series of
inappropriate exchanges with her supervisor. Id. at 1354.
The USPS issued Malloy a notice of proposed removal on
August 29, 2006; and she was ultimately removed effec-
tive October 6, 2006. Id. Malloy appealed her removal to
the Board. At the hearing before the Board, Malloy
submitted extensive medical evidence, including, inter
alia, a post-removal report dated December 5, 2006, from
Malloy’s physician who had treated her for severe recur-
rent major depression from September 26, 2006, to De-
cember 16, 2006. Id. at 1355. The report specifically
linked Malloy’s inappropriate behavior to her medical
condition. Id. In sustaining Malloy’s removal, the Board
failed to explicitly address the medical evidence submit-
ted by Malloy, though it noted that it had “reviewed her
submissions.” Id. at 1356. We held that “when mental
impairment or illness is reasonably substantiated, and is
shown to be related to the ground of removal, this must be
taken into account when taking an adverse action against
the employee.” Id. Thus, although the Board stated that
all of the relevant Douglas factors had been considered,
because the Board failed to explicitly analyze Malloy’s
medical evidence, we remanded the case for consideration
of Malloy’s evidence (including the post-removal report)
and “reapplication of the Douglas factors in light of this
evidence.” Id. at 1357.
Hall v. Dep’t of the Air Force, 8 M.S.P.R. 347, 355 (1981)
(“[W]e are not limited to the record before the agency and
will consider all relevant factors of record.”), aff’d in part,
rev’d in part on other grounds, 698 F.2d 1230 (9th Cir.
1983).
NORRIS v. SEC 16
Under Malloy, the Board is tasked with independ-
ently assessing the relevant Douglas factors to determine
whether the penalty imposed was reasonable. See also
Lachance, 178 F.3d at 1257 (“That the Board always
should have independent balancing authority seems
manifest in view of the Reform Act’s purpose in creating
the Board to determin[e] whether [the civil service] sys-
tem is free from abuse.” (alterations in original) (internal
quotation marks omitted)). Thus, we hold that where new
evidence in mitigation of the penalty imposed is presented
to the Board (or the arbitrator), the evidence must be
considered in determining whether the agency’s imposed
penalty was reasonable.
In this case, the arbitrator erred in holding that “post-
removal . . . good conduct is not relevant to the issue
before the arbitrator.” Arbitration Decision, slip op. at 57
n.17. In assessing the reasonableness of the penalty
imposed, the arbitrator was required to consider post-
removal evidence that was brought to his attention. On
remand, the arbitrator should consider the post-removal
evidence submitted by Norris in evaluating the relevant
Douglas factors. We express no opinion as to the weight
to be given such mitigating evidence.
On remand, we leave to the arbitrator to determine
whether, in light of all the evidence, the penalty of re-
moval “did strike a responsible balance within tolerable
limits of reasonableness.” Douglas, 5 M.S.P.B. at 333.
CONCLUSION
For the foregoing reasons, the arbitrator’s decision af-
firming Norris’s removal is vacated and the matter is
remanded for further proceedings consistent with this
opinion.
VACATED and REMANDED.
17 NORRIS v. SEC
COSTS
Costs to appellant.