Leroy R. Goodson v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEROY R. GOODSON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2019-2434
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0714-19-0171-I-1.
______________________
Decided: February 3, 2021
______________________
THOMAS G. WOLPERT , Wolpert Schreiber McDonnell
P.C., Royersford, PA, for petitioner.
G EOFFREY M ARTIN LONG , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JEFFREY B. CLARK , ELIZABETH M ARIE H OSFORD , R OBERT
EDWARD K IRSCHMAN , JR.
______________________
Before M OORE, REYNA, and STOLL, Circuit Judges.
Case: 19-2434 Document: 45 Page: 1 Filed: 02/03/2021

-- 1 of 4 --

GOODSON v. DVA 2
M OORE, Circuit Judge.
Leroy R. Goodson appeals a final decision from the
Merit Systems Protection Board affirming the Department
of Veterans Affairs’ removal of Mr. Goodson for miscon-
duct. Goodson v. Dep’t of Veterans Affairs, No. PH-0714-
19-0171-I-1, 2019 WL 3550392 (M.S.P.B. July 29, 2019).
For the following reasons, we vacate and remand.
BACKGROUND
Beginning in 2012, Mr. Goodson worked in food service
at the Veterans Medical Center in Coatesville, Pennsylva-
nia. In a February 15, 2019 letter, the Chief of Nutrition
and Food Service at the Medical Center, Laura Sarmento,
proposed removing Mr. Goodson from employment for in-
appropriate conduct in a verbal confrontation with a pa-
tient. See 38 U.S.C. § 714. Ms. Sarmento reasoned that
removal was the proper penalty (1) because of Mr. Good-
son’s prior suspension for “making lewd comments” and en-
gaging in “sexually suggestive actions, along with
disrespectful behavior towards a supervisor,” (2) because
“[e]mployees are expected to treat Veterans with kindness
and respect at all times,” and (3) because “it is the respon-
sibility of all employees to promote a productive work envi-
ronment free of inappropriate conduct and vulgarities.”
J.A. 120–21. On February 27, 2019, the Director of the
Medical Center, Carla Sivek, found substantial evidence
supported the charge of inappropriate conduct and re-
moved Mr. Goodson. J.A. 113.
Mr. Goodson appealed his removal to the Board. He
argued that the Board should consider whether the penalty
is out of proportion with the alleged misconduct, particu-
larly when there are mitigating factors. In an initial deci-
sion, the Chief Administrative Judge rejected
Mr. Goodson’s argument, holding that § 714(d)(2)(B) nei-
ther requires nor allows consideration of the factors used
to consider the reasonableness of a penalty as articulated
in Douglas v. Veterans Administration, 5 MSPB 313 (1981).
Case: 19-2434 Document: 45 Page: 2 Filed: 02/03/2021

-- 2 of 4 --

GOODSON v. DVA 3
See J.A. 3; see also J.A. 4. The Chief AJ also sustained the
charge of inappropriate conduct, and therefore, affirmed
Mr. Goodson’s removal. The initial decision became final
on September 2, 2019. Mr. Goodson appeals. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We “hold unlawful and set aside” a Board decision that
is: “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence[.]”
5 U.S.C. § 7703(c).
Mr. Goodson argues the Board erred in holding
38 U.S.C. § 714(d)(2) precludes considering mitigation of
his removal penalty. Subsections 714(d)(2)(A) and
714(d)(2)(B) state:
(A) Notwithstanding section 7701(c)(1)(B) of title 5,
the administrative judge shall uphold the decision
of the Secretary to remove, demote, or suspend an
employee under subsection (a) if the decision is
supported by substantial evidence.
(B) Notwithstanding title 5 or any other provision
of law, if the decision of the Secretary is supported
by substantial evidence, the administrative judge
shall not mitigate the penalty prescribed by the
Secretary.
Mr. Goodson argues we must vacate and remand under
Sayers v. Department of Veterans Affairs, 954 F.3d 1370
(Fed. Cir. 2020).1 In Sayers, we held that Ҥ 714 requires
1 Mr. Goodson also argues that the Board’s failure to
consider the penalty’s reasonableness violated his right to
due process. Because we vacate and remand, we need not
reach that issue.
Case: 19-2434 Document: 45 Page: 3 Filed: 02/03/2021

-- 3 of 4 --

GOODSON v. DVA 4
the Board to review for substantial evidence the entirety of
the VA’s removal decision—including the penalty—rather
than merely confirming that the record contains substan-
tial evidence that the alleged conduct leading to the ad-
verse action actually occurred.” Id. at 1379. The
government argues Sayers was wrongly decided. We, how-
ever, are bound by the Sayers decision unless it is overruled
en banc or by the Supreme Court. The Chief AJ’s decision,
which issued before our decision in Sayers, explicitly re-
fused to consider the penalty determination for Mr. Good-
son. Accordingly, we must vacate and remand for the
Board to consider whether the removal penalty is sup-
ported by substantial evidence.
CONCLUSION
Because the Board failed to consider whether Mr.
Goodson’s removal penalty was supported by substantial
evidence, we vacate and remand.
VACATED AND REMANDED
COSTS
No costs.
Case: 19-2434 Document: 45 Page: 4 Filed: 02/03/2021

-- 4 of 4 --