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Rooney v. Department of Agriculture

Decided: February 19, 1987.

JAMES J. ROONEY, PETITIONER,
v.
DEPARTMENT OF AGRICULTURE, RESPONDENT



No. NY075281l0300REM

Before Markey, Chief Judge, Rich and Nies, Circuit Judges.

Per Curiam

Per Curiam.

DECISION

The decision of the Merit Systems Protection Board (board), Docket No. NY075281l0300REM, sustaining Department of Agriculture's (USDA's) removal of James J. Rooney (Rooney) for conduct prejudicial to the best interests of the service, is affirmed.

Substantial evidence supports the presiding official's findings that the Immigration and Naturalization Service (INS) attempted to conduct a surveillance at the British Consulate in New York City on August 28, 1980, and that Rooney's actions had the effect of interfering with that surveillance. That some evidence may support Rooney's interpretation of INS' actions is insufficient for reversal. We must uphold the presiding official's decision if the record "disclose[s] such relevant evidence as might be accepted by a reasonable mind as adequate to support the conclusion reached." Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

Substantial evidence supports the presiding official's finding of a nexus between Rooney's off-duty conduct and the efficiency of the service. Rooney's behavior prompted INS to send a letter of complaint to USDA. There was testimony that Rooney's behavior had a dampening effect on relations between INS and USDA's Office of Inspector General (OIG). The record shows that OIG is USDA's criminal investigatory arm. Rooney, an OIG criminal investigator, took actions that effectively interfered with another federal agency's criminal investigation. Where, as here, an employee's off-duty conduct is contrary to the employing agency's mission, that fact may support a finding of nexus. Allred v. Department of Health and Human Serv., 786 F.2d 1128, 1131 (Fed. Cir. 1986).

In its May 21, 1986 order dismissing Rooney's petition for review of the second initial decision, the board noted "it is apparent that [Rooney] was removed for his actions rather than for his belief or associations." Because Rooney has presented no evidence to support his contrary assertion, we have been shown no basis from which to conclude that Rooney's removal violated his first amendment rights. See United States v. O'Brien, 391 U.S. 367, 382 (1968) (no first amendment violation where conviction for burning draft card rested on conduct's willful frustration of government interest, not on conduct's communicative content).

The record does not support Rooney's assertion that the penalty of removal was grossly disproportionate to the nature of the offense. Substantial evidence supports the presiding official's determination that USDA weighed relevant factors as prescribed in Douglas v. Veterans Admin., 5 MSPB 313 (1981), before proposing Rooney's removal. We will not disturb a choice of penalty within an agency's discretion unless the severity of its action appears totally unwarranted in light of all relevant factors. See Yeschick v. Department of Transp., 801 F.2d 383, 384-85 (Fed. Cir. 1986); DeWitt v. Department of the Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984), cert. denied, 470 U.S. 1074 (1985).

In its January 15, 1985 Opinion and Order, the board did not err in reversing the sanction imposed in the first initial decision. The board properly undertook to balance the public interest in protecting the flow of information against Rooney's need for the information. See Roviaro v. United States, 353 U.S. 53, 62 (1957). Although, as the board noted, an in camera inspection of the documents Rooney sought could have been helpful in balancing those interests, it was merely among the range of permissible options available. Kinoy v. Mitchell, 67 F.R.D. 1, 9 (S.D.N.Y. 1975). That the board chose a different permissible option provides no basis for reversal.

We affirm the board's decision because we do not find that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that it was obtained without procedures required by law, rule, or regulation having been followed, or that it was unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

19870219

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