Gary Gose v. United States Postal Service

United States Court of Appeals for the Federal Circuit
05-3272
GARY GOSE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Michael Allen McNew, Doll, Jansen & Ford, of Dayton, Ohio, for petitioner.
David C. Belt, Appellate Counsel, United States Postal Service, of Washington,
DC, for respondent. With him on the brief was Lori J. Dym, Chief Counsel, Appellate
Litigation. Also on the brief was Peter D. Keisler, Assistant Attorney General, Civil
Division. Of counsel were David M. Cohen, Director; Todd M. Hughes, Assistant
Director; and James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC.
Appealed from: United States Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
05-3272
GARY GOSE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
________________________
DECIDED: June 14, 2006
________________________
Before, RADER, SCHALL, and GAJARSA, Circuit Judges.
GAJARSA, Circuit Judge.
This is an appeal from the Merit System Protection Board (“MSPB” or “Board”),
which upheld the removal of petitioner Gary Gose (“Gose”) from his position as City
Carrier with the United States Postal Service (“USPS” or “the agency”), for allegedly
violating an agency regulation while working pursuant to the terms of a last chance
agreement (“LCA”). This court has jurisdiction “of an appeal from a final order or final
decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and
7703(d) of title 5[.]” 28 U.S.C. § 1295. For the reasons discussed below, we reverse
the decision of the Board and remand for further proceedings consistent with this
opinion.

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I. BACKGROUND
A. Conduct Leading to the Last Chance Agreement
On August 25, 2003, the agency proposed Gose’s removal, and on September
12, 2003, the deciding official found that removal was warranted. The official concluded
that Gose had “fail[ed] to use [a] satchel in the delivery of the mail” and had therefore
failed to “observe our safety rules and policies.” The deciding official also stated that
Gose had recently been “present for the service-safety talks concerning this subject”
and had “acknowledged that [he] was aware of the requirement to use the satchel.” As
evidence of Gose’s apparent propensity for not following instructions, the deciding
official cited several suspensions for “Failure to Perform Your Duties in a Conscientious
and Effective Manner / Failure to Follow Instructions” and one suspension for “Failure to
Perform Your Duties in a Conscientious and Effective Manner / Unauthorized Extension
of Lunch.”
As a final resolution of these matters, Gose entered into a LCA with the agency
on October 31, 2003. A key provision of the LCA was that Gose would “comply with all
the applicable policies, rules and regulations with regard to his employment as a
condition of this last chance agreement. Failure to comply . . . will constitute a basis
that will result in Mr. Gose’s removal . . . .”
B. Gose’s Alleged Violation of the LCA—Drinking “in a public place” While in
Uniform.
On March 29, 2004, Douglas Potter (“Potter”), Customer Service Manager at the
Wright Brothers Branch Post Office, proposed to remove Gose for violating the terms of
the LCA. Potter wrote that on February 27, 2004, the Post Office had received a
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customer concern letter regarding Gose’s drinking while in uniform at Veterans of
Foreign Wars (“VFW”) Post 9927, Kettering, Ohio. There were thirty signatures on the
letter. Apparently, the members of the VFW were offended by the sight of someone
drinking in uniform. As one member opined, “Well, I’m retired military. . . . You just
don’t drink in uniform in a public place.” The administrative judge (“AJ”) never expressly
considered Gose’s argument that the VFW had written the letter to his employer in
retaliation for Gose’s complaining about alleged accounting discrepancies in the VFW
post’s books. The motives of the VFW, however, are not relevant to this appeal and will
not be further considered.
The underlying facts were never in dispute. In fact, Gose estimated that he had
consumed three thousand mixed drinks at the VFW since 1988 and acknowledged that
he often drank there while wearing his uniform. Rather, the dispute centered on
whether Gose’s actions had violated any postal “policy, rule or regulation.” If so, then
according to the terms of the LCA, Gose’s removal would be warranted.
Potter stated that Gose’s actions had indeed violated several USPS standards of
conduct as expressed in the Employee and Labor Relations Manual (“ELM”). These
provisions were (1) § 661.3(f) (engaging in actions “whether or not specifically
prohibited by the Code, which might result in or create the appearance of . . . . affecting
adversely the confidence of the public in the integrity of the Postal Service”); (2)
§ 661.53 (engaging in “conduct prejudicial to the Postal Service”); (3) § 661.54
(“drink[ing] intoxicating beverages in a public place while in uniform”);1 and (4) § 666.2
1 See also 39 C.F.R. § 447.25(e) (“No employee shall drink intoxicating
beverages in a public place while in uniform.”).
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(failing to “conduct [himself] during and outside of working hours in a manner which
reflects favorably upon the Postal Service . . . .”).
The deciding official, David Ashworth (“Ashworth”), Postmaster of Dayton, Ohio,
agreed with the proposal to remove Gose. In his letter of removal, Ashworth stated that
he believed that Gose’s “acknowledgements and admissions [of the underlying facts] in
this matter demonstrate[d] that ‘Just Cause’ existed for [his] removal.” He further stated
that Gose’s “actions in not observing Postal Service rules and regulations . . . violates
the employee standards of conduct for employees as expressed in the Employee and
Labor Relations Manual (ELM) that forbid your drinking of intoxicating beverages in a
public place while in uniform.” The deciding official found that Gose’s conduct was
prejudicial to the Postal Service and served to undermine public confidence in the
Service’s integrity “as evidenced by the corroborated initial customer complaint.”
Ashworth also stated that he had reviewed and considered the Douglas factors,2
including: (1) the seriousness of the offense and its prejudicial effect upon the agency’s
mission; (2) that other employees had received removal notices for similar offenses; (3)
an absence of mitigating circumstances, including a lack of remorse;3 (4) that Gose was
2 See Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).
3 As for lack of remorse, Ashworth stated:
I am unable to find mitigating circumstances for your response that
you needed to have a membership card to gain entry into the VFW.
I have considered your seeming lack of remorse for the impact your
continued drinking while in uniform had with our customers. Postal
records in this file, and your own acknowledgement, indicates that
you were previously notified of your responsibility regarding
drinking in uniform. You have not acted appropriately in your own
behalf in this matter even after being forewarned.
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employed pursuant to a voluntary LCA, and (5) that Gose could not be rehabilitated as
an employee. He also cited the LCA, which clearly provided for removal as the next
step of discipline.
C. Board Review
Gose appealed his removal to the Board, arguing that “[t]he only regulation which
the Agency has heretofore cited to and alleged that the Appellant has violated is Section
661.54 Employee Relations – Conduct Use of Intoxicating Beverages.” He further
argued that he had not violated the provision on drinking in a public place while in
uniform because “he ha[d] limited his after work drinking to a private club . . . .”
(emphasis added). Gose argued that “[t]he Agency fails to acknowledge a distinction
between public and private places, yet the rule or regulation with which Appellant is
charged, specifically limits itself to ‘public place.’”
Because Gose does not dispute that he drank at the VFW post while in uniform
while the LCA was in effect, the dispute in this case centers solely on whether or not the
VFW is a “public place,” as that phrase is used in the relevant postal regulation. During
the appeal to the MSPB, Ashworth testified before the administrative judge (“AJ”) that to
the Postal Service “any place is a public place that we serve. . . . [E]very citizen is a
customer of ours.” Ashworth explained that the VFW “is a private place for
membership, but as far as the Postal Service [is concerned] – as I say, any place . . . is
public.” Similarly, Tod O’Reilly (“O’Reilly”), Manager of Customer Service, testified that
“[postal employees] are always in public” except “when we’re in our own homes.”
It is not clear whether Ashworth ever entertained the possibility that Gose was not
exhibiting a “lack of remorse” but rather felt he had been wrongly accused. After all,
whether indignation or remorse is appropriate turns entirely on whether or not Gose had
actually violated an ELM provision. Gose believes that he did not.
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The AJ rejected Gose’s argument that the VFW is not a public place, noting the
testimony of O’Reilly and Ashworth that “a public place is anywhere that Postal Service
customers can be found.” The AJ adopted this definition, stating that “[t]he intent of the
Postal Service policy is to prevent its uniformed employees from drinking intoxicating
beverages in public view, a circumstance clearly present in this case based on
complaints from members of the public regarding his conduct.” The AJ concluded that
“[b]ecause numerous Postal Service customers complained about the appellant’s
conduct, I find the conduct occurred in public, not in private.” The Board subsequently
rejected Gose’s petition for review, and the decision of the AJ became final.
II. DISCUSSION
Gose argues that the Board committed several errors, including in its
interpretation of the Postal Service regulation that prohibits employees from drinking “in
a public place” while in uniform. Because we hold that the Board did err in this regard,
we reverse the Board’s decision without consideration of Gose’s other assignments of
error.
A. Standard of Review
Here we are reviewing the Board’s construction of a regulation, including its
decision to defer to the interpretation proffered by the agency. See Douglas v. Veterans
Admin., 5 M.S.P.R. 280, 287 (1981) (“[I]t is the final orders or decisions of the Board
which constitute the acts of ‘the Government’ for purposes of judicial review.”). In so
doing, we note as an initial matter that provisions of the ELM do in fact constitute
“regulations.” See 39 U.S.C. § 401 (“The Postal Service shall have the following
general powers . . . . (2) to adopt, amend, and repeal such rules and regulations as it
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deems necessary to accomplish the objectives of this title[.]”); 39 C.F.R. § 211.2(a)(2)
(1988) (providing that the ELM is a part of the USPS regulations); see also Wood v.
Merit Sys. Prot. Bd., 938 F.2d 1280, 1282 (Fed. Cir. 1991).
“This court must affirm the Board’s decision unless it is: ‘(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) unsupported
by substantial evidence.’” Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1330 (Fed. Cir.
2005) (quoting 5 U.S.C. § 7703(c) (2000)). We have held that “[a]n abuse of discretion
occurs where the decision is based on an erroneous interpretation of the law, on factual
findings that are not supported by substantial evidence, or represents an unreasonable
judgment in weighing relevant factors.” Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed.
Cir. 2006) (internal quotations omitted); see also O’Keefe v. U.S. Postal Serv., 318 F.3d
1310, 1314 (Fed. Cir. 2002) (“The Board necessarily abuses its discretion when it rests
its decision on factual findings unsupported by substantial evidence.” (internal
quotations omitted)). The construction of a regulation is a question of law. Kent v.
Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004) (“[I]nterpretation of a statute or regulation
is a question of law . . . .”) (internal quotations omitted). We review questions of law de
novo. See, e.g., Wallace v. Office of Pers. Mgmt., 283 F.3d 1360, 1361 (Fed. Cir.
2002).
B. Regulatory Construction
Next, we turn to the proper construction of the regulation Gose is accused of
violating. As a general rule, we must defer to an agency’s interpretations of the
regulations it promulgates, as long as the regulation is ambiguous and the agency’s
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interpretation is neither plainly erroneous nor inconsistent with the regulation. See
Gonzales v. Oregon, 126 S. Ct. 904, 914 (2006) (“An administrative rule may receive
substantial deference if it interprets the issuing agency’s own ambiguous regulation.”
(citing Auer v. Robbins, 519 U.S. 452, 461 (1997))); Christensen v. Harris County, 529
U.S. 576, 588 (2000) (“In Auer, we held that an agency’s interpretation of its own
regulation is entitled to deference. But Auer deference is warranted only when the
language of the regulation is ambiguous.”) (citations omitted); Bowles v. Seminole Rock,
325 U.S. 410, 413-14 (1945) (“[In] an interpretation of an administrative regulation a
court must necessarily look to the administrative construction of the regulation if the
meaning of the words used is in doubt. The intention of Congress or the principles of
the Constitution in some situations may be relevant in the first instance in choosing
between various constructions. But the ultimate criterion is the administrative
interpretation, which becomes of controlling weight unless it is plainly erroneous or
inconsistent with the regulation. . . . Our only tools, therefore, are the plain words of the
regulation and any relevant interpretations of the Administrator.”); cf. Lacavera, 441
F.3d at 1383 (holding that “‘an agency’s interpretation of its own regulations is entitled to
substantial deference and will be accepted unless it is plainly erroneous or inconsistent
with the regulation.’” (quoting Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1282
(Fed. Cir. 2005)).
We defer even more broadly to an agency’s interpretations of its own regulations
than to its interpretation of statutes, because the agency, as the promulgator of the
regulation, is particularly well suited to speak to its original intent in adopting the
regulation. See Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352,
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1363-64 (Fed. Cir. 2005) (“[I]t is well settled that an agency’s interpretation of its own
regulations is entitled to broad deference from the courts. Deference to an agency’s
interpretation of its own regulations is broader than deference to the agency’s
construction of a statute, because in the latter case the agency is addressing
Congress’s intentions, while in the former it is addressing its own.”) (citations omitted);
Am. Express Co. v. United States, 262 F.3d 1376, 1382-83 (Fed. Cir. 2001) (holding
that because “we are not dealing with an agency’s interpretation of a statute and issues
of Chevron deference, but with the IRS’s interpretation of an ambiguous term in its own
Revenue Procedure . . . substantial deference is paid to an agency’s interpretations
reflected in informal rulings”).
Consequently, deference is appropriate even if other interpretations of the
regulation may accord somewhat better with the regulatory language than does the
Secretary’s interpretation. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515
(1994) (“The Secretary’s interpretation of the anti-redistribution principle is thus far more
consistent with the regulation’s unqualified language than the interpretation advanced
by the petitioner. But even if this were not so, the Secretary’s construction is, at the
very least, a reasonable one, and we are required to afford it ‘controlling weight.’” (citing
Seminole Rock, 325 U.S. at 414) (emphasis added)).
Deference is particularly appropriate when the agency interpretation has been
consistently applied. See Ehlert v. United States, 402 U.S. 99, 105 (1971) (“[S]ince the
meaning of the language [of the regulation] is not free from doubt, we are obligated to
regard as controlling a reasonable, consistently applied administrative interpretation if
the Government’s be such.” (citing Immigration Serv. v. Stanisic, 395 U.S. 62, 72
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(1969); Thorpe v. Housing Authority, 393 U.S. 268, 276 (1969); Udall v. Tallman, 380
U.S. 1, 16-17 (1965); Seminole Rock, 325 U.S. at 413-14) (emphasis added))); see
also Seminole Rock at 417-18 (“Any doubts concerning this interpretation of [the
regulation] are removed by reference to the administrative construction . . . [as
evidenced by] a bulletin issued by the Administrator concurrently with
the . . . Regulation[,] . . . his First Quarterly Report to Congress . . . [and] in the
countless explanations and interpretations given to inquirers affected by this type of
maximum price determination.”).
Conversely, “an agency’s interpretation of a statute or regulation that conflicts
with a prior interpretation is ‘entitled to considerably less deference’ than a consistently
held agency view . . . .” Thomas Jefferson Univ., 512 U.S. at 515 (emphasis added)
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446, n.30 (1987) (quoting Watt v.
Alaska, 451 U.S. 259, 273 (1981))). Watt in turn cites General Electric Co. v. Gilbert;
Gilbert provides a link to Skidmore deference. Gilbert, 429 U.S. 125, 143 (1976) (“We
have declined to follow administrative guidelines in the past where they conflicted with
earlier pronouncements of the agency. In short, while we do not wholly discount the
weight to be given the 1972 guideline, it does not receive high marks when judged by
the standards enunciated in Skidmore, supra.”) (citations omitted) (referring to Skidmore
v. Swift & Co., 323 U.S. 134 (1944)). Just as an agency’s inconsistent interpretation of
its regulation detracts from the deference we owe to that interpretation, so does
evidence that the proffered interpretation runs contrary to the intent of the agency at the
time of enactment of the regulation. See Gardebring v. Jenkins, 485 U.S. 415, 430
(1988) (“[W]hen it is the Secretary’s regulation that we are construing, and when there is
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no claim in this Court that the regulation violates any constitutional or statutory
mandate, we are properly hesitant to substitute an alternative reading for the
Secretary’s unless that alternative reading is compelled by the regulation’s plain
language or by other indications of the Secretary’s intent at the time of the regulation’s
promulgation.”) (emphases added).
Legitimate agency interpretations may be made even during the very
administrative determination that has become the subject of review. See Cathedral
Candle, 400 F.3d at 1364 (“That generous degree of deference is due to an agency
interpretation of its own regulations even when that interpretation is offered in the very
litigation in which the argument in favor of deference is made.” (citing Auer, 519 U.S.
452, 461-62)). However, the interpretation must truly be one that had been applied by
the agency, either prior to or, at the latest, during the exercise of its administrative
powers in the present matter. An “interpretation” is therefore not a position advanced by
the agency for the first time before the Board or in a court of review. Such an
“interpretation” is then no more than a litigation position to which no deference is due.
See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“[W]e have
declined to give deference to an agency counsel’s interpretation of a statute where the
agency itself has articulated no position on the question, on the ground that ‘Congress
has delegated to the administrative official and not to appellate counsel the
responsibility for elaborating and enforcing statutory commands.’” (quoting Investment
Co. Inst. v. Camp, 401 U.S. 617, 628 (1971))); id. at 213 (“Deference to what appears to
be nothing more than an agency’s convenient litigating position would be entirely
inappropriate.”); Investment Co., 401 U.S. at 628 (“It is the administrative official and not
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appellate counsel who possesses the expertise that can enlighten and rationalize the
search for the meaning and intent of Congress.”); see also Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate
counsel’s post hoc rationalizations for agency action; Chenery requires that an agency's
discretionary order be upheld, if at all, on the same basis articulated in the order by the
agency itself . . . .” (citing SEC v. Chenery Corp., 332 U.S. 194 (1947))). Nonetheless,
the standard for deference is often easily met. See, e.g., Auer, 519 U.S. at 462 (finding
that “[t]here is simply no reason to suspect that the interpretation [offered by an agency
in a legal brief] does not reflect the agency’s fair and considered judgment on the matter
in question”).
Finally, the interpretation either has to be that of the Secretary or properly
imputed to him in some way. See, e.g., Thomas Jefferson Univ., 512 U.S at 517
(implying that deference might be improper if the Secretary’s “fiscal intermediary” had
displayed a contrary understanding of the regulation and “if petitioner could show that
such [action] was approved by – or even brought to the attention of – the Secretary or
her designate at the time”).
C. Analysis
The agency argues that it adjudicated Gose’s dismissal by interpreting “public
place” to mean “a place where postal customers are located” and that because this
interpretation is plausible, it is entitled to deference.4 As we explained above, in order
4 We reject the agency’s argument that we can sustain its removal action
based on Gose’s alleged violations of other statutory provisions. Agency action must be
sustained, if at all, on the actual grounds relied on by the agency. See, e.g., Burlington
Truck Lines, 371 U.S. at 168-69. The letter of decision clearly states as grounds for
removal “violat[ion of] the employee standards of conduct for employees as expressed
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to merit Seminole Rock deference, the agency’s interpretation (1) must have been
directed to regulatory language that is unclear; (2) must have been actually applied in
the present agency action; and (3) must not be plainly erroneous or inconsistent with
the regulation. In addition, we consider the consistency vel non with which the agency
has applied that interpretation. See supra Part II.B. The agency’s interpretation clearly
passes the first prong of the tripartite test, as the regulation is vague as to the scope of
the phrase “in a public place.” It fails the second two prongs for the reasons discussed
below.
Turning first to the “actual application” prong, we observe that the salient
question is whether the agency actually based its decision to remove Gose on the
interpretation of “public place” as anywhere that a Postal Service customer can be
found. We must ensure that the agency is not now masquerading a post hoc
rationalization as a then-existing “interpretation.” See Burlington Truck Lines, 371 U.S.
at 168-69 (declining to defer to “appellate counsel’s post hoc rationalizations for agency
action”). The problem here is that the agency asks us to accept the after-the-fact
testimony before the Board of, inter alia, the deciding official as proof that it had actually
decided the Gose matter by applying a particular construction of the regulation. Clearly,
an agency’s mere application of law to facts in a particular action cannot be read to
establish an implicit “agency interpretation” of the regulation. Such a rule would vitiate
the requirement that agency interpretations be legitimate precursors to an application of
in the Employee and Labor Relations Manual (ELM) that forbid your drinking of
intoxicating beverages in a public place while in uniform.” Although other “catch-all”
ELM provisions were mentioned in the proposal letter, they did not constitute the basis
for the deciding official’s action.
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law to fact, rather than post hoc rationalizations, by creating de facto per se deference
in every case.
Thus, the question becomes whether it was arbitrary and capricious for the Board
to conclude, based on the evidence before it, that the deciding official had in fact
applied a particular “interpretation” of the regulation in his decision, even though his
decision letter made absolutely no mention of any such interpretation. We hold that it
was. On appeal to the MSPB, however, the AJ improperly overlooked this shortcoming,
and relied principally on testimony by the deciding official (Ashworth) that to the Postal
Service “any place is a public place that we serve. . . . [E]very citizen is a customer of
ours.” The AJ then deferred to the agency’s interpretation of “public place,” stating in
his initial decision that he “agree[d] with the testimony of Messrs. O’Reilly [the local
customer service manager] and Ashworth [postmaster],” that “a public place is
anywhere that Postal Service customers can be found.” The AJ further implied that this
interpretation was consistent with “[t]he intent of the Postal Service policy to prevent its
uniformed employees from drinking intoxicating beverages in public view.” There was,
however, no evidence before the Board to suggest the intent of the agency in
promulgating the regulation.
The AJ erred in deferring to the agency’s interpretation. Where a letter of
removal is silent about the agency’s interpretation of its regulation, the existence and
application of such an interpretation cannot be established principally by the after-the-
fact testimony of agency officials regarding what they had apparently thought but failed
to articulate at the relevant time.
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Moreover, according to Seminole Rock, no deference is due to an agency
interpretation of a reference that is “plainly erroneous or inconsistent with the
regulation.” 325 U.S. at 414. The agency asks us to read ELM § 661.54 (prohibiting
“drink[ing] intoxicating beverages in a public place while in uniform”) and to adopt as our
definition of “public place” their proffered interpretation—namely, “anywhere that Postal
Service customers can be found.” We further note, in this regard, the hearing testimony
of local Postmaster Ashworth, who stated that to the Postal Service “any place is a
public place that we serve. . . . [E]very citizen is a customer of ours.” (emphasis
added).
Because, according to the Postal Service, a public place exists wherever there is
a postal customer, and because by the agency’s own account, “every citizen is [its]
customer,” we reach the logical conclusion that, in the agency’s view, a public place
exists wherever there is a citizen. This definition would classify as “public places” even
employees’ private homes, at least to the extent that the employee is not alone there.
In short, the problem with this interpretation is that it effectively reads language out of
the regulation. If the agency had wished to promulgate a regulation that prohibited
drinking in uniform while “in the presence of others,” it might have done so. However, it
did not. Instead, it promulgated a regulation that specifically forbade such activity only
“in a public place.” (emphasis added). An agency interpretation that effectively
eviscerates regulatory language is per se inconsistent with the regulation and may be
accorded no deference.
Rejecting the agency’s regulatory construction, we now turn to the meaning of
the phrase “in a public place.” While we need not define its precise contours, we hold
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that the VFW post is not a public place by any reasonable construction of the postal
regulation. If the Postal Service wishes to further restrict drinking by its off-duty
uniformed employees, it may promulgate a new regulation. To be clear, here we
express no view on whether such a regulation would constitute an impermissible
intrusion on employees’ privacy interests.
For the reasons stated above, we conclude that the Board acted in an arbitrary
and capricious manner in affirming the agency’s action after erroneously deferring to the
agency’s unreasonable interpretation of its regulation. Accordingly, Gose is to be
immediately reinstated to his position, with back pay and credit, for all purposes, for the
period of his improper removal from the Postal Service. We also deem Gose not to
have breached the terms of the LCA, such that, inter alia, the agency is obligated to
comply with its obligations thereunder, including its obligation to remove “all citable
disciplinary actions” in Gose’s record. We remand to the Board for further action
consistent with this opinion.
REVERSED AND REMANDED
Costs to petitioner.
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